Hamberg v. Liverpool & L. & G. Ins. Co.

• Decision Date: 17 April 1900
• Citation: 42 Fla. 86,27 So. 872
• Parties: HAMBERG v. LIVERPOOL & L. & G. INS. CO.
• Court: Florida Supreme Court

27 So. 872

42 Fla. 86

HAMBERG v. LIVERPOOL & L. & G. INS. CO.

Florida Supreme Court

April 17, 1900

Error to circuit court, Brevard county; Rhydon M. Call, Judge.

Action by Simon Hamberg, suing for the use and benefit of the Indian River State Bank, against the Liverpool & London & Globe Insurance Company. Judgment for defendant, and plaintiff brings error. Dismissed.

Syllabus by the Court

SYLLABUS

1. Under the statutes of amendments in force in this state trial courts have power to allow amendments as to parties by striking out the nominal plaintiff, and permitting the suit to proceed in the name of the use plaintiff as sole plaintiff.

2. Though an order permitting a plaintiff to amend does not specifically direct an amendment as to parties, yet if its language is broad enough to include an amendment of that nature, and such amendment is actually made, and the amended pleading is treated by the court and amended pleading is treated by the court and the parties as having been properly filed, by proceeding to final judgment thereon, the amendment will be regarded as having been properly allowed and made.

3. Where, in a suit originally instituted by two persons jointly, leave is given to amend, and an amended declaration is filed, wherein one of the original plaintiffs assumes the position of nominal, and the other of use, plaintiff, and subsequently, in pursuance of leave given to amend, an amended declaration is filed, wherein the name of the nominal plaintiff is omitted, and the use plaintiff appears as sole plaintiff, suing in his own right, and the cause subsequently proceeds to final judgment upon said amended declaration, to which final judgment the former nominal plaintiff is not a party, and it appears that such former nominal plaintiff has impliedly consented to and acquiesced in the propriety of the amendments, the last amendment operates as an abandonment of the suit so far as he is concerned; and having abandoned the suit and ceased to be a party thereto prior to final judgment, and such final judgment not purporting to affect him in any respect, he has no right to maintain a writ of error from such judgment.

COUNSEL Robbins & Graham and Geo. P. Raney, for plaintiff in error.

A. W Cockrell & Son, for defendant in error.

OPINION

CARTER J.

On December 10, 1896, the Indian River State Bank, a corporation, and Simon Hamberg, as plaintiffs, instituted suit in the circuit court of Brevard county against the Liverpool & London & Globe Insurance Company, a corporation of Great Britain, doing business in Florida, upon a policy of fire insurance issued to said Hamberg. The declaration contained only one count, which sought to recover upon the policy; and, with respect to the title of the plaintiffs to said policy, it alleged that on December 13, 1895, after loss of the property insured by fire, Hamberg, for value received by a written agreement indorsed on the policy, pledged the same to, and deposited it with, the bank, as security for certain debts and engagements of Hamberg to the bank, and that the policy had never been redelivered to Hamberg, but was in the custody and possession of the bank, as pledgee thereof, to secure the payment of said debts and the performance of said engagement. The original policy of insurance was filed as the cause of action sued upon. The defendant demurred to this declaration upon various grounds the first being that there was no averment in the declaration upon which a joint recovery by the Indian River State Bank and Simon Hamberg, as co-plaintiffs, might be predicated. The court sustained this demurrer on the first ground, and gave leave to plaintiffs to amend as they might be advised. Within the time limited, an amended declaration, consisting of one count, declaring upon the same insurance policy described in the first declaration, was filed. This declaration was filed in the name of Simon Hamberg, suing for the use and benefit of the Indian River State Bank, and the allegations as to the title to the insurance policy were the same as in the first declaration. After this declaration was filed, the defendant moved the court for judgment final upon the demurrer to the first declaration upon the grounds that plaintiffs had not amended the declaration so as to take it out of the condemnation of the ground of demurrer sustained by the court, and that plaintiffs had not filed any amended declaration, or any amendment to the declaration in the case. This motion was denied, and defendant thereupon demurred to the amended declaration upon various grounds; the first and second being that the averments failed to set up a right of action in the plaintiff, but that such averments, if they disclosed a right of action at all, showed that such right of action was in the bank. This demurrer was overruled, and the defendant filed two pleas in abatement, each of which designated the plaintiffs as the Indian River State Bank and Simon Hamberg, and alleged that the praecipe for summons was filed on December 10, 1896; that the summons issued the same day to defendant to answer the Indian River State Bank, a corporation, and Simon Hamberg, which summons was served.

The first plea further alleged that the amended and only declaration filed was one filed by Simon Hamberg as sole plaintiff; and the second, that the amended and only declaration filed was one filed by Simon Hamberg as sole plaintiff, suing, not for himself, but for the use of the Indian River State Bank. Subsequently, Hamberg, suing for the use and benefit of the bank, moved for a default against defendant for failure to plead in accordance with leave granted upon overruling demurrer to amended declaration, and this motion being denied, filed his demurrer to the pleas in abatement, which was sustained. Defendant thereupon filed five pleas in bar, to three of which a demurrer was sustained. Defendant then filed seven additional pleas in bar, to which plaintiff demurred. This demurrer was not ruled upon, as at the argument the plaintiff applied for leave to amend his declaration, and, with defendant's consent, the court granted the application. An amended declaration was filed in the name of Simon Hamberg, suing for the use and benefit of the Indian River State Bank, as plaintiff, containing six counts, the first and second of which declared upon the same insurance policy described in the previous declarations. The allegations as to title to the insurance policy were to the effect, in the first count, that on December 13, 1895, after the loss by fire of the property insured, the plaintiff assigned and delivered said policy to the bank to secure an indebtedness due said bank by him, and for collection as his agent,--the bank to collect the policy, and deduct from the proceeds thereof the amount of plaintiff's indebtedness up to the time of such collection, and to account to the plaintiff for the balance,--and that the policy had never been redeemed, but was still in the custody of the bank, which was the pledgee thereof, and entitled to receive the full proceeds thereof; and in the second, that on December 13, 1895, after the loss by fire of the property insured, the policy was assigned and delivered in pledge to the bank, which was authorized to receive the full proceeds thereof for the plaintiff, as fully set forth in the first count. The third count was for interest on divers sums of money forborne; the fourth, for money paid and expended for the use of defendant; the fifth, for money received; and the sixth, for money found to be due upon account stated. A note at the foot of the declaration designated the original policy on file as the cause of action. The defendant demurred to the first and second counts of this amended declaration, and the demurrer was sustained, with leave to amend, if plaintiff was so advised, by filing his amended declaration within six days. Two days thereafter the clerk of the court, upon application of defendant, entered an order dismissing the suit as...