First Nat. Bank v. Ulmer

• Decision Date: 26 June 1913
• Parties: FIRST NAT. BANK OF ST. PETERSBURG v. ULMER.
• Court: Florida Supreme Court

63 So. 145

66 Fla. 68

FIRST NAT. BANK OF ST. PETERSBURG v. ULMER.

Florida Supreme Court

June 26, 1913

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by the First National Bank of St. Petersburg against M. W Ulmer. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

All the points adjudicated by an appellate court upon a writ of error on an appeal become the law of the case and are no longer open for discussion or consideration.

When a demurrer to pleas in held bad on appeal, the matter is res adjudicata, and the trial court is bound thereby. The statute requiring courts to permit amendments to pleadings does not contemplate amendments to the grounds of a demurrer to pleas where the pleas have been held to be good on the demurrer on appeal, and the question is res adjudicata.

Every pleading is to be most strictly construed against the pleader thereof. It is the first essential of good pleading that it be characterized by certainty, and this quality is especially requisite in a replication.

COUNSEL E. R. Gunby and Wm. Hunter, both of Tampa, for plaintiff in error.

McMullen & McMullen, of Tampa, for defendant in error.

OPINION

SHACKLEFORD C.J.

The First National Bank of St. Petersburg brought two actions against M. W. Ulmer and also an action against John S. Taylor upon three separate promissory notes. In the court below demurrers were sustained to pleas in all three cases and judgment were entered in favor of the plaintiff. Writs of error were sued out to all three judgments, but by a written agreement filed in this court it was stipulated that, as the pleadings in the three cases were similar and the points to be determined were the same, only one transcript of the record should be filed here, and that the decision rendered in one case should be decisive of all three cases. In accordance with this agreement, we proceeded to consider the cases and found that the demurrers had been erroneously sustained to the pleas and reversed the judgments. See the opinion rendered in Ulmer v. First National Bank of St Petersburg, 61 Fla. 460, 55 So. 405, and decisions rendered in the other two cases--61 Fla. 460, 55 So. 405, and 61 Fla. 469, 55 So. 408. Upon the going down of the mandate, the defendant in the Ulmer Case, in which only a decision was rendered by this court, by leave of court amended his first plea. The plaintiff interposed a demurrer to the two pleas, which was overruled, whereupon the plaintiff filed replications, to which the defendant interposed a demurrer, which was sustained; and, the plaintiff declining to plead further, final judgment was rendered in favor of the defendant, which the plaintiff has brought here for review by writ of error, assigning as error the overruling of the demurrer to the pleas, the sustaining of the demurrer to the replications, and the rendition and entry of the final judgment. In order to render this opinion the more readily intelligible, we think it advisable to copy the pleadings, omitting their formal parts. The declaration is as follows:

The First National Bank of St. Petersburg, a corporation, by E. R. Gunby and William Hunter, its attorneys, sues M. M. Ulmer for that heretofore, to wit, on the 19th day of March, 1910, the defendant, by his promissory note of said date, rpomised on or before the 19th day of July, 1910, for value received, to pay Shugars and Ogden or order $2,500 with interest from date at 6 per cent. per annum, payable at the office of the First National Bank of St. Petersburg, and all costs and 10 per cent., attorney's fee, if placed in the hands of an attorney for collection.

'That thereafter, and before said note fell due, the said Shugars and Ogden sold the same and indorsed it for value of the plaintiff, and on the 19th day of July, 1910, said note was duly presented for payment at the First National Bank of St. Petersburg, Fla., and that the said M. M. Ulmer failed and refused to pay the same, and thereafter the plaintiff requested the said M. M. Ulmer, defendant, to pay said note, and upon his failure and refusal to do so placed the same in the hands of the plaintiff's attorneys for collection.

'Whereupon the plaintiff brings this suit and claims $4,000 damages and files a copy of said note and makes the same a part of this declaration.'

The promissory note attached to and made a part of the declaration is as follows:

'$2,500.000.

'St. Petersburg, Fla., Mch. 19th, 1910.

'On or before the 19 day of July, 1910, for value received, we or either of us promise to pay Shugars & Ogden, or order, twenty-five hundred dollars, with interest from date at 6% per annum, payable at the office of the First National Bank of St. Petersburg, Fla., and all costs and 10 per cent. attorney's fee, if placed in the hands of an attorney for collection. All demands and offsets against the payee herein named are waived in favor of any bona fide purchaser. The drawers and indorsers severally waive presentment for payment, protest and notice of protest and nonpayment of this note.

'Note No. 7820.

M. M. Ulmer.'

Indorsed:

'O. W. Shugars.

'W. T. Ogden.

'St. Petersburg, Fla., July 19-1910. Protested for nonpayment. Walter Robinson Howard, Notary Public. Charges $2.00.'

As we have already said, the defendant, by leave of court, amended his first plea, which reads as follows:

'First. That the note sued upon was never the property of Shugars & Ogden, the payee named therein, but that said Shugars & Ogden were the agents of the Automobile Insurance Company of America, a corporation organized and existing under the laws of the state of Indiana; and that said note given by this defendant as a part of the purchase price of the certain shares of the capital stock of the said corporation, and that this was known to the plaintiff, the First National Bank of St. Petersburg, at the time it attempted to acquire the said note sued upon; and that the said contract was executory, the stock not to be delivered until the note was paid; and that at the date of the said note, to wit, March 19, 1910, no foreign corporation was permitted to transact business or acquire, hold, or dispose of property in this state until it had filed in the office of the Secretary of State a duly authenticated copy of its charter or articles of incorporation and received from the Secretary of State a permit to transact business in this state; and that on the date last aforesaid, to wit, the 19th day of March, 1910, the date upon which the shares of stock were sold to this defendant, and the note aforesaid given, the said the Automobile Insurance Company of America, a corporation, had not complied with the laws of this state in that it had not filed in the office of the Secretary of State a duly authenticated copy of its charter or articles of incorporation and had not then received from the said Secretary of State a permit to transact business in this state; and that the said note was executed at St. Petersburg, Fla., where the pretended contract for stock was entered into and was delivered in said state, to the said Shugars & Ogden, as agents of the said the Automobile Insurance Company of America.

'Wherefore said note is void and unenforceable against this defendant.'

The second plea remained unchanged and reads as follows:

'Second. That the note sued upon was made by the defendant to Shugars & Ogden as the agents of the Automobile Insurance Company of America, a corporation organized and existing under the laws of the state of Indiana, as part consideration for a contract on behalf of said corporation to deliver certain shares of the capital stock of said corporation to this defendant; and that this was known to the plaintiff, the First National Bank of St. Petersburg, at the time it attempted to acquire the said note sued upon; and that the said contract was executory, the stock not to be delivered until the note was paid; and that at the date of the said note, to wit, March 4, 1910, every contract made by or on behalf of any foreign corporation affecting its liability or relating to property within the the state of Florida, before such corporation had filed in the office of the Secretary of State a duly authenticated copy of its charter or articles of incorporation and had received from the Secretary of State a permit to transact business in this state, was void on behalf of said corporation and on behalf of its assigns; and that on the date of said note, to wit, March 4, 1910, the date upon which the shares of stock were agreed to be sold to this defendant and the note aforesaid given, the said the Automobile Insurance Company of America, a corporation, had not complied with the laws of this state in that it had not filed in the office of the Secretary of State a duly authenticated copy of its charter or articles of incorporation and had not then received from the said Secretary of State a permit to transact business in this state; and the said note was executed in St. Petersburg, Fla., where the pretended contract for the sale of the stock was entered into.

'Wherefore said note is void and unenforceable against this defendant.'

To these pleas the plaintiff interposed the following demurrer:

'Now comes the plaintiff, the First National Bank of St. Petersburg, by E. R. Gunby and William Hunter, its attorneys, and files this its demurrer to the amended first plea and to the second plea to the plaintiff's declaration and for cause of demurrer says:

'That the said amended plea and second plea are had in substance and insufficient in law for the following reasons, to wit:

'First. That, even if all the facts set...