Glasser v. Hackett

• Decision Date: 04 March 1896
• Citation: 20 So. 532,37 Fla. 358
• Parties: GLASSER et al. v. HACKETT.
• Court: Florida Supreme Court

20 So. 532

37 Fla. 358

GLASSER et al. v. HACKETT.

Florida Supreme Court

March 4, 1896

Error to circuit court, Bradford county; R. M. Call, Judge.

Petition by Glasser, Kuder & Ottensoser against N.H. Hackett for a writ of error. The writ was granted, and defendant in error moves to dismiss, and to strike the bill of exceptions from the record. Motion denied.

Syllabus by the Court

SYLLABUS

1. As a general rule the law presumes that a single cause of action can be tried and determined in one suit, and will not permit a plaintiff to maintain more than one action against the same party for the same cause at one time.

2. The remedy for the defendant against whom two actions are brought by the same plaintiff for the one cause is a plea in abatement to the second action. Such plea must show that the former action is still pending when the plea is filed, and it is a good reply to such a plea that the prior action has been dismissed. The reason upon which the rule proceeds is that the first suit is effective and available, and affords ample remedy to the plaintiff, and therefore the second suit is unnecessary, and consequently vexatious. Therefore, where it is shown that the former suit is ineffectual to accomplish its purpose, or that it has been dismissed, the second suit is necessary, and not vexatious, and should not be abated.

3. The principles stated in the preceding headnotes are applicable to writs of error. A writ of error is in the nature of a new suit. A motion to dismiss a writ of error because of the pendency of a prior writ of error is in the nature of a plea in abatement, and should not be granted where the first writ of error is wholly ineffectual to accomplish its purpose, or where it has been dismissed. Mabry, C.J., dissenting.

4. A writ of error without supersedeas does not remove the record from the court below in the sense that the lower court loses any control over it, or power to enforce the judgment upon which the writ is taken. Neither does the issuing of a first writ of error exhaust the power of this court over the subject-matter. A second appeal or writ of error is allowed in this state, when sued out within the statutory limitation where the first has been dismissed for irregularity or want of jurisdiction.

5. The absence from the transcript of the record of the order allowing time to present the bill of exceptions is not sufficient reason to strike it from the record, when it appears from the bill of exceptions itself that such an order was made.

6. Where a bill of exceptions is presented for signature within the time allowed by the order of the court, it is not essential that it should be actually signed upon the day it is presented.

COUNSEL W. B. Young, for the motion.

J. L Frazee, opposed.

OPINION

LIDDON J.

The defendant in error moves the court to dismiss the writ of error, and to strike the bill of exceptions from the record. The ground of the motion to dismiss the writ of error is 'because, at the time said writ was issued and filed in the circuit court, the said cause was pending in this court upon writ of error.' The record of the case here shows that, prior to September 14, 1895, a writ of error had been issued from this court upon the same judgment which is attacked by the present writ. On the date mentioned a motion was filed to dismiss said writ of error, one of the grounds of said motion being a failure of the plaintiff in error to file his briefs within the time prescribed by the rules of this court. On October 8, 1895, the motion was granted upon the ground stated.

The second writ of error, the one now sought to be dismissed issued September 19, 1895, after the motion was filed to dismiss the first writ, but before the order was made dismissing the same. There was no supersedeas of the judgment of the court below upon either writ. The question is, ought a second writ of error to be dismissed because issued while a prior one was pending, when the motion is made for that purpose after the prior writ had been properly dismissed by the order of the court? Authority upon the same state of facts as this case is extremely scarce. No case of the precise kind was pointed out to us by the counsel of either party, and in our investigations we have discovered only two, which are referred to in the course of this opinion. Authority is abundant upon the general question of the effect of bringing two suits upon the same cause of action, and under what circumstances the suit last brought should abate. As a general rule, the law presumes that a single cause of action can be tried and determined in one suit, and will not permit a plaintiff to maintain more than one action against the same party for the same cause at one time. 6 Wait, Act. & Def. p. 496, and authoritiees cited. The remedy for the defendant against whom two actions are brought by the same plaintiff for the one cause is a plea in abatement to the second action. Such plea must show that the action is still pending when the plea is filed, and it is a good reply to such plea that the prior action has been dismissed. Id. 498. The reason upon which the rule proceeds is that the first suit is effective and available, and affords ample remedy to the plaintiff, and therefore the second suit is unnecessary and consequently vexatious. There seems to be no propriety in extending the rule to cases where the reason does not exist. Therefore, where it is shown that the former suit is ineffectual to accomplish its purpose, or that it has been dismissed and is not pending, the second suit appears upon the fact of the proceedings as necessary and not vexatious, and should not be abated. Durand v. Carrington, 1 Root, 355; Ward v. Curtiss, 18 Conn. 290; Adams v. Gardiner, 13 B. Mon. 197; Ballou v. Ballou, 26 Vt. 673; State v. Dougherty, 45 Mo. 294; Averill v. Patterson, 10 N.Y. 500; Jenkins v. Pepoon, 2 Johns. Cas. 312; Chamberlain v. Eckert, 2 Biss. 124, Fed. Cas. No. 2,576; Langham v. Thomason, 5 Tex. 127; Jewett v. Locke, 6 Gray, 233; Rogers v. Hoskins, 15 Ga. 270; Swart v. Borst, 17 How. Prac. 69; Hixon v. Schooley, 26 N. J. Law, 461. There are some cases which seem opposed to those cited. Gamsby v. Ray, 52 N.H. 513, is one of them, and others are cited therein.

The principles above stated have reference to suits generally. Are they applicable to writs of error? We think so. Our practice assimilates writs of error to other suits. A writ of error is in the nature of a new suit. A motion to dismiss a writ of error is in the nature of a plea in abatement. Loring v. Wittich, 16 Fla. 323, text, 327. To the same effect is Pow. App. Proc. 105 et seq.; Id. 262 et seq. This work (page 105) says: 'Proceedings in error are in the nature of a new action, and are brought by the person against whom final judgment has been rendered in the court below, whether plaintiff or defendant. It is brought on some alleged error in such judgment and proceedings, and the person by whom this new action in error is brought is called the plaintiff in error, and the opposite party the defendant in error. Frequently they are the same parties, and as they stood in the court below; but often they are reversed.'

There is no force in the contention that by the first writ of error the record was so removed into this court that there was nothing in the court below for the second writ to act upon. A writ of error without supersedeas does not remove the record from the court below, in the sense that the lower court loses any control over it or power to enforce the judgment upon which the writ is taken. Pow. App. Proc. p. 103; McJilton v. Love, 13 Ill. 486, text 494. Neither can it be said that the first writ of error exhausts the power of this court over the subject-matter. A second appeal or writ of error is allowed in this state, when sued out within the statutory limitation, where the first has been dismissed for irregularity or want of jurisdiction. Benbow v. Marquis, 17 Fla. 441; Harris v. Ferris, 18 Fla. 81.

The cases previously referred to, and the only ones which we have seen where the question arose as to whether the principles above stated as applicable to other actions had any application to writs of error, are Bank v. Tarbox, 20 Conn. 510, and Garrick v. Chamberlain, 97 Ill. 620. It was expressly decided in these cases that the same general principles applied to writs of error. Therefore a plea in abatement to a writ of of error, founded on the pendency of another writ of error to reverse the same judgment, should be overruled, where it appeared that the first writ of error would have been wholly ineffectual, or where it had been dismissed. In such cases, it is said, the second writ is not vexatiously brought.

The motion to strike the bill of exceptions is upon two grounds The first is that 'no bill of exceptions was made up and signed during the term of the court at which the trial was held, and the transcript of the record does not show that any special order was made and entered in the minutes allowing further time.' The bill of exceptions recites that it was proposed to the judge 'on the 19th of April, A. D. 1895, * * * by virtue of a special order herein made,' and that on said date plaintiffs in error did 'request him to sign the same.' The circuit judge adds that: 'This bill of exceptions was presented to me on the afternoon of April 19, 1895, and taken away by attorney for plaintiff, and delivered to the attorney for claimant to look over; and on this day, to wit, July 3, 1895, attorneys for parties appeared before me and settled same, whereupon I have this day signed same as of the day presented,--court having adjourned March 22d, and 30 days additional having been granted plaintiffs to prepare, present, and settle their bill of...