Flynn-harris-bullard Co. v. Hampton

• Decision Date: 02 November 1915
• Citation: 70 So. 385,70 Fla. 231
• Parties: FLYNN--HARRIS--BULLARD CO. v. HAMPTON et al.
• Court: Florida Supreme Court

70 So. 385

70 Fla. 231

FLYNN--HARRIS--BULLARD CO. v. HAMPTON et al.

Florida Supreme Court

November 2, 1915

Rehearing Denied Dec. 21, 1915.

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Action by H. M. Hampton and another against the Flynn-Harris-Bullard Company, a corporation. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

A judgment, rendered by a court of competent jurisdiction in a cause pending therein, that the plaintiffs 'take nothing by their plaint, and that the defendant * * * go hence without day,' is a 'final judgment,' and not one of dismissal of the cause.

Where a final judgment or decree has been rendered by a court having jurisdiction of the subject-matter and of the parties, it is binding on the parties and their privies; and such final judgment or decree is a bar to another suit or action between the same parties for the same subject-matter. This principle of law is enforced by the courts so that parties may not be vexed more than once for the same cause, and that there may be an end to litigation.

Where a final judgment or decree is rendered for the defendant on demurrer, the plaintiff is estopped from maintaining a similar or concurrent action or suit for the same cause upon the same grounds that were disclosed in the first suit or action, for the reason that the judgment determines the merits of the cause as presented by the pleadings affected by the demurrer.

A party cannot, either in the course of litigation or in dealings in pais, occupy inconsistent positions. Upon that rule election is founded. A man shall not be allowed to approbate and reprobate. And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts. The election, if made with knowledge of the facts, is in itself binding. It cannot be withdrawn without due consent. It cannot be withdrawn though it has not been acted upon by another by any change of position.

A garnishee is not by the service of the writ to be placed in any worse condition than if the defendant, his creditor, had brought the action upon the claim which is garnisheed. As to the garnishee, the plaintiffs take the shoes of the defendant, and can assert only the rights of the latter. Any defense which the garnishee could have interposed to defeat a recovery against him if the proceeding had been one directed against him by the defendant for the enforcement of the indebtedness of the garnishee to the defendant may be interposed by the garnishee to prevent the recovery of a judgment against him as garnishee.

COUNSEL C. M. Cooper, Chas. P. & J. J. G. Cooper, of Jacksonville, for plaintiff in error.

W. I Evans, of Ft. Lauderdale, for defendants in error.

OPINION

SHACKLEFORD J.

H. M Hampton and M. H. Long instituted an action at law against A P. Munroe, Robert Munroe, and A. N. McDonald, as surviving partners of the firm of Munroe-McEachern & Co., and recovered judgment against such defendants for the sum of $1,425, together with costs. During the pendency of the action and prior to the entry of such action, the plaintiffs filed their affidavit for a writ of garnishment against Flynn-Harris-Bullard Company, a corporation, which writ was duly issued and served. The garnishee filed its answer, which is as follows:

'Flynn-Harris-Bullard Company, the above-named garnishees, for answer to the writ of garnishment served upon it in the above-entitled cause, says: That it is not now, and was not at the time of the service of the said writ of garnishment, or at any time between said service and the time of filing this answer, indebted to the said defendants in any sum or sums, and that it has no goods, moneys, chattels, or effects of the said defendants in its hands, possession, or control at the time of making this answer, and did not have at the time of service of said writ upon it or at any time between said times.

'That the said Flynn-Harris-Bullard Company does not know of any person indebted to the said defendants or who may have any of the money, property, chattels, or effects of the said defendants in their hands, possession or control.

'That on the 5th day of December, A. D. 1911, said garnishee tendered into the United States District Court for the Southern District of Florida the sum of $983.13, which it then legally owed to the said defendants. The said tender was made in a case therein pending in which said defendants in this case were plaintiffs and the said garnishee was defendant, and the said plaintiffs in this case were the attorneys for said plaintiffs in said case in the United States court. That the said plaintiffs in said case in said District Court, at the time they instituted suit against said Flynn-Harris-Bullard Company, were severally liable to said company as indorsers on certain past-due notes held by Flynn-Harris-Bullard Company, in the sum of $10,783.92. That the said Flynn-Harris- Bullard Company was then legally indebted to the said plaintiffs in that suit in the sum of $11,767.05. Thereupon said company pleaded its claim by way of set-off against the said claim of said plaintiffs and tendered into court the said balance.

'That said defendants in this present case, as plaintiffs in the other case, contended that for purely technical reasons, without regard to the merits, Flynn-Harris-Bullard Company could not set off their debt to said company against their claim and refused to take said balance so tendered into court. The said court, however, ruled that the said debt to Flynn-Harris-Bullard Company constituted proper matter of set-off, and sustained the defendants' plea of set-off. Thereupon the said plaintiffs in said suit refused to take said sum so tendered, but applied through their said attorneys, who are now plaintiffs in their present suit, for a final judgment against themselves in full, which was granted by said court, and duly entered, as will more particularly appear from a certified copy of said judgment hereunto attached, and made part of this answer. That the said court thereupon made an order, a certified copy of which is hereto attached, and made part of this answer, directing the clerk of said court to repay the said sum tendered into court, as aforesaid, to the defendant, in accordance with which the clerk so repaid same.

'That the said case in the United States court was pending over a course of several years, and occasioned said Flynn-Harris-Bullard Company great inconvenience, and expense in a sum greater than the said sum so tendered by it and returned to it. That the said plaintiffs in that case relied upon defeating the said claim of Flynn-Harris-Bullard Company solely upon a legal technicality, regardless of the merits, to wit, that their debt to it could not be pleaded as a set-off in that case. That therefore the expense occasioned to said garnishee in said other cause was due entirely to the efforts of said plaintiffs in this present cause to defeat a debt upon technical grounds. That their entire suit ignored the merits of said claim of Flynn-Harris-Bullard Company, and the court held that their technical position was not legal. That therefore, morally, the Flynn-Harris-Bullard Company is entitled to retain the said sum which by the legal judgment of said United States District Court it has been awarded to partially reimburse itself for the expenses of said litigation. And the said Flynn-Harris-Bullard Company has not since said judgment and does not now legally or morally owe to the said defendants any sum whatever. That the said plaintiffs in this cause were the attorneys for the defendants in said other cause in the United States District Court aforesaid, and prepared the said judgment and applied for and obtained the entry thereof in said United States District Court.'

Certified copies of the judgment and order of the United States District Court, referred to in such answer, are attached thereto, and read as follows:

'In the United States District Court, Southern District of Florida.

'Monroe, McEachern & Co. v. Flynn-Harris-Bullard Co.

'This day came the parties in the above-entitled cause, and it appearing to the court that the demurrer of the plaintiffs to the fourth plea of the defendant has been overruled by the judgment of this court, dated June 12, 1914, and that the plaintiffs have filed herein a refusal to join issue upon said fourth plea of the defendant, or to file a replication thereto, and that the defendant is entitled to judgment final on the overruling of said demurrer to said fourth plea, it is thereupon

'Considered and ordered by the court on application of the plaintiffs, that the plaintiffs, A. P. Monroe, Robert Monroe and A. N. McDonald, as surviving partners of the firm of Monroe, McEachern & Company, take nothing by their plaint and that the defendant, Flynn-Harris-Bullard Company, a corporation, go hence without day; and that the said defendant do have and recover of and from the said plaintiffs, its costs herein taxed by the clerk, for which let execution issue.

'Done and ordered this 30th day of July, 1914.

'[Signed] Rhydon M. Call,

U. S. District Judge.'

'In the United States District Court in and for the Southern District of Florida.

'Monroe, McEachern & Company, Plaintiffs, v. Flynn-Harris-Bullard Company, a Corporation, Defendant.

'Whereas a final judgment upon the overruling of plaintiff's demurrer to defendant's plea of set-off was, upon application of plaintiffs, in the above-entitled cause, made and entered therein against the said plaintiffs and in favor of the said def...