Harrington v. Bowman

• Decision Date: 06 July 1932
• Citation: 106 Fla. 86,143 So. 651
• Parties: HARRINGTON v. BOWMAN et al.
• Court: Florida Supreme Court

143 So. 651

106 Fla. 86

HARRINGTON v. BOWMAN et al.

Florida Supreme Court, Division B.

July 6, 1932

Rehearing Denied Oct. 1, 1932.

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

On rehearing.

Original opinion (136 So. 229) modified, and judgment reversed and remanded, with directions.

BROWN and ELLIS, JJ., dissenting.

COUNSEL

Shackleford, Ivy, Farrior & Shannon, of Tampa, for plaintiff in error.

Jackson Dupree & Cone, Sparkman & Knight, Gibbons & Gibbons, and Whitaker, Himes & Whitaker, all of Tampa, for defendants in error.

OPINION

PER CURIAM.

In an opinion heretofore filed ^[1] we held that the motion in arrest of judgment, which was granted, should have been denied, and that the judgment for defendants on the merits, which was entered pursuant to the granting of the motion of arrest of judgment, should be reversed and the cause remanded for further proceedings in the circuit court on a pending undisposed of motion for a new trial.

A rehearing has since been granted and the cause argued before the whole court.

The contention of rehearing is that, while it was proper for this court to reverse the judgment and remand the cause, under the circumstances shown by the record, nevertheless such reversal of the judgment should have carried with it a direction to dismiss the plaintiff's suit, because of a discontinuance of same by operation of law.

The suit was begun as a joint suit against three defendants alleged to be liable on a joint and several promissory note. Two of the defendants were served with process, but the third named defendant, J. H. Bowman, Jr., was not served; the return of the officer being simply 'not found.'

The two defendants who were personally served entered their appearance. Both filed pleas and went to trial, in the absence of the third defendant. The result as to the two defendants before the court was a verdict for the plaintiff against C. L. Knight and J. E. Wall. No verdict was rendered, nor could have been rendered under the circumstances, against J. H. Bowman, Jr.

Plaintiff in error contended in his original briefs that, after the verdict was rendered against Knight and Wall, it became necessary to have entered and rendered a proper final judgment upon the verdict returned as against the two defendants before the court. It was also contended that the court should have permitted an amendment of the sheriff's return so as to show that Bowman did not reside in the county, and that therefore plaintiff had the right under the statute ^[2] to proceed against the others who were served, although Bowman was named on the record as a joint defendant and not served.

The court's denial of plaintiff's motion to amend the sheriff's return cannot be considered, because we must presume that the order denying that motion was correct, and there is no bill of exceptions to demonstrate that the presumption has been overcome in this case. Fidelity &amp Deposit Co. v. Aultman, 58 Fla. 228, 50 So. 991.

In an action brought as a joint suit, no other than a joint judgment could be rendered therein at common law. Webster v. Barnett, 17 Fla. 272; Hale v. Crowell's Adm'x, 2 Fla. 534, 50 Am. Dec. 301; Mutual Loan & Building Ass'n v. Price, 19 Fla. 127; Bacon v Green, 36 Fla. 325, 18 So. 870; Somers v. Florida Pebble Phosphate Co., 50 Fla. 275, 39 Fla. 61; Springstead v. Crawfordville State Bank, 63 Fla 267, 57 So. 668.

Where some of the joint defendants in a joint suit were beyond the jurisdiction, though properly joined as defendants, the remedy at common law to enable plaintiff to proceed against those who were served, in the absence of those not served, was outlawry. The rule on this subject was thus stated in Barton v. Petit, 7 Cranch, 194, 201, 3 L.Ed. 313,^[3]as follows:

'The general rule certainly is, that if two or more persons are sued in a joint action, the Plaintiff cannot proceed to obtain a judgment against one alone, but must writ until the others have been served with process, or until the other Defendants have been proceeded against as far as the law authorizes for the purpose of forcing an appearance. In England the Plaintiff must proceed to out-law the Defendants who have not been served, before he can proceed against those who appear. In Virginia, where this suit was brought, the Plaintiff might have taken out an alias and a pluries capias, or testatum capias, or, at his election, an attachment against the estate of such Defendant; or, upon the return of a pluries not found, the Court may order a proclamation to issue, warning the Defendant to appear on a certain day, and, if he fail to do so, judgment by default may be entered against him.

'But, whatever may be the mode provided by law for forcing an appearance, the Plaintiff cannot proceed to obtain a judgment against one Defendant in a joint action against two, until he has proceeded against the other as far as the law will authorize, unless the law dispenses with the necessity of proceeding against the other Defendant beyond a certain point to force an appearance. Thus, in Pennsylvania, (as is known to one of the judges of this court) if the sheriff return non est as to one Defendant, the Plaintiff may proceed against the other on whom the writ was served, stating, in his declaration, the return of the writ as to his companion.'

At common law there must be a recovery against all or none of those declared against jointly, unless one defendant has shown a defense personal to himself, not affecting the original joint liability; and plaintiff, while maintaining his suit as a joint action, cannot sever and take judgment against one or more only of the several defendants. A judgment in a joint action against one only will be rendered as to all, where one of several defendants jointly sued at common law was not served with process. See Jones v. Griffin (Fla.) 138 So. 38; 8 C.J. 1085.

Section 4496, Comp. Gen. Laws, section 2809, Rev. Gen. St., is in derogation of the common law, in that it authorizes judgment to be rendered jointly against all defendants actually served, where a number of defendants are sued jointly on a joint, or joint and several, contract, without requiring those named as defendants and not served to be prosecuted to outlawry as at common law. See 33 C.J. 1118.

So the rule is that, even where the note or contract sued on is joint and several, where the action brought is a joint action brought as if upon a contract imposing a joint liability, judgment cannot be taken against less than all the defendants thus sought to be held jointly liable, unless the terms of section 4496, Comp. Gen. Laws, supra, are first strictly complied with, unless some defense is interposed by one or more of the defendants personal to the defendant against whom judgment is not to be rendered. Doggett v. Jordan, 3 Fla. 215; Id., 4 Fla. 121; Springstead v. Crawfordville State Bank, 63 Fla. 267, 57 So. 668. ^[4]

In our former opinion, we held that, when the two defendants served voluntarily joined issue with the plaintiff, and went to trial without objecting to the failure to serve the other joint defendant, or went to trial without objecting to plaintiff's failure to show compliance with the statute permitting the cause to proceed to trial without him, the otherwise permissible objection as to the third defendant's absence could not be raised by them by a motion in arrest of judgment, in view of section 4501, Comp. Gen. Law, section 2814, Rev. Gen. St.

Our view on rehearing is, however, that, since the use of a motion in arrest of judgment has heretofore been sustained as a proper means of raising this kind of an objection (See Webster v. Barnett, 17 Fla. 272, text 279), waiver of the point cannot be imputed to the defendants from the bare fact of their joinder of issue or from their failure to affirmatively object prior to the time the filing of a motion in arrest of judgment was required, such motion not being required to be made until after verdict. Sections 4500, Comp. Gen. Laws, 2813, Rev. Gen. St., 4498, Comp. Gen. Laws, 2811, Rev. Gen. St.

There is no bill of exceptions in the present case to show what did or did not occur before or at the time of the trial, touching any other conduct which might amount to a waiver by the defendants of the absence of defendant Bowman, so the presumption must be that there was no waiver where the record is silent on the subject and the judgment of the circuit court in awarding an arrest of judgment is inconsistent with the idea that a waiver was shown.

In this case plaintiff did not undertake to dismiss his action against all the makers of the note, except one, thereby converting the action into a several suit against that one, as this court has intimated might have been permissible, since the note was a joint and several note. ^[5] Neither did the plaintiff take advantage of the repleader which the circuit court awarded to him after granting the motion of defendants in arrest of judgment. Such being the state of the record before us, our previous opinion should be modified to the extent of now holding that there was no error committed by the court in granting the motion in arrest of judgment, but that the judgment should nevertheless stand reversed and the cause remanded for the entry of a proper judgment of dismissal on plaintiff's discontinuance, instead of a final judgment for the defendants on the merits, as was in fact entered.

A discontinuance of a common-law action is similar to a nonsuit, and occurs whenever the plaintiff leaves a...