First Nat. Bank of Cresson, Pa., v. Brown

• Decision Date: 08 April 1935
• Citation: 119 Fla. 761,162 So. 142
• Court: Florida Supreme Court
• Parties: FIRST NAT. BANK OF CRESSON, PA. v. BROWN.

162 So. 142

119 Fla. 761

FIRST NAT. BANK OF CRESSON, PA. v. BROWN.

Florida Supreme Court, Division B.

April 8, 1935

Rehearing Denied July 2, 1935.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Suit by the First National Bank of Cresson, Pa., against Myrtle O Brown, single. Judgment for the defendant, and the plaintiff brings error.

Affirmed.

COUNSEL George M. Bilger, Allen C. Grazier, and Marshall C. Musser, Jr., all of St. Petersburg, for plaintiff in error.

William Mahlon Davis and B. M. Skelton, both of St. Petersburg, for defendant in error.

OPINION

BUFORD Justice.

Writ of error brings for review judgment rendered in a suit based on a foreign judgment.

The defendant's first plea to the original declaration was as follows:

'This defendant says that the purported judgment obtained in the Court of Common Pleas of Cambria County in the State of Pennsylvania, wherein it is alleged that judgment was rendered against this defendant in the sum of Five Thousand and Forty ($5,040.00) Dollars, is void and of no force and effect for the following reasons:

'(a) Because said court did not obtain jurisdiction over this defendant as she was not served with process, did not appear in said cause, and had no opportunity to appear and defend the same.

'(b) This defendant did not authorize any attorneys to appear for her or to confess judgment therein.

'(c) This defendant denies that she ever signed the note upon which said judgment was purported to be predicated nor did she authorize anyone to sign same for her, nor did she know that her name had been attached as the maker thereof.

'(d) Because at the date of the alleged judgment this defendant was a resident of the State of Florida and not of the State of Pennsylvania, nor has she been such resident of the State of Pennsylvania for the past six years, but has resided continuously and had a legal residence and domicile in the County of Pinellas and the State of Florida.

'(e) Said judgment is void for said reasons, and for the further reason that said judgment was rendered upon a purported judgment confession by the attorneys for the plaintiff, which was a fraud upon this defendant, as she had never authorized said attorneys to appear for her, or to confess judgment in her name.

'(f) Because at the time and on the date, to-wit: April 4th, 1929, at which said note is alleged to have been signed, sealed and delivered, this defendant was not in the State of Pennsylvania, but was in the County of Pinellas and State of Florida.'

Demurrer was interposed and sustained to this plea. We are not called upon to determine the propriety of that order.

Thereafter, amended declaration was filed. In the first count of that declaration, after alleging the procuring of the judgment in the court of common pleas in the county of Cambria in the state of Pennsylvania by the plaintiff against the defendant, it is further alleged 'which said judgment was duly confessed by attorney appearing for said defendants named, and was duly entered by prothonotary of said court, in strict conformity with the terms of the power of attorney contained in said note, which was the basis of said suit, and was confessed and entered in accordance with the laws of the State of Pennsylvania, and still remains upon the record of said court as a good and valid judgment, against all of the defendants named, including the said Myrtle O. Brown, jointly and severally, under the laws of the State of Pennsylvania. * * *'

It was not necessary for plaintiff to include the above-quoted allegations in his declaration, but having elected to so declare, such allegations showed the manner by which it was assumed that the foreign court purported to acquire jurisdicton of the defendant in the original suit and the plaintiff became bound by that allegation. It, therefore, became a material issue whether or not the court entering the judgment in the foreign jurisdiction had acquired jurisdiction of the defendant and by the means alleged in the declaration.

To this declaration defendant filed four pleas. The fourth plea went out on demurrer and motion to strike. Demurrer and motion to strike were overruled and denied as to third plea. Issue was joined on defendant's first and second pleas to the amended declaration, and, after the order on demurrer, issue was joined on third plea.

Those pleas were as follows:

'First. That the purported judgment obtained in the Court of Common Pleas of Cambria County in the State of Pennsylvania wherein it is alleged that judgment was rendered against this defendant in the sum of Five Thousand and Forty ($5,040.00) Dollars, is void and of no force and effect because said Court did not obtain jurisdiction over this defendant as she was not served with process, did not appear in said cause and had no opportunity to appear and defend same and did not authorize any attorneys to appear for her or to confess judgment therein.

'Second. This defendant denies that she ever signed the note upon which said judgment was purported to be predicated, nor did she authorize anyone to sign same for her, nor did she know that her name had been attached as the maker thereof.

'Third. That the record of the purported Pennsylvania judgment shows said judgment was not rendered by a Court of general jurisdiction and such record is not competent to be made the basis of an action in this State.'

Judgment on the issues so presented was in favor of the defendant.

We think the allegations above quoted from the declaration take this case out of the rule enunciated in the case of Sammis v. Wightman, 31 Fla. 10, 12 So. 526, 527, where it was held:

'Where a party sued in one state on judgment obtained...