Hewitt v. International Shoe Co.
Citation | 154 So. 838,114 Fla. 743 |
Court | United States State Supreme Court of Florida |
Decision Date | 11 May 1934 |
Parties | HEWITT v. International Shoe Co. |
Suit by T. W. Hewitt, as administrator of the estate of Frieda Hewitt, deceased, against the International Shoe Company and others. Judgment dismissing plaintiff's suit for want of prosecution, and plaintiff brings error.
Reversed and remanded. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.
Blackwell & Gray, of Miami, for plaintiff in error.
Snedigar & Baya, of Miami, for defendants in error.
This was a writ of error prosecuted by plaintiff below from a judgment of non prosequitur rendered against plaintiff for want of prosecution of a suit at law wherein plaintiff refused to join issue on certain of defendants' pleas. See Hewitt v. International Shoe Co. (Fla.) 148 So 533. The case has now been reached by this court for consideration on its merits. We find but one question necessary to be decided at this time. The other questions are not considered.
On May 5, 1932, plaintiff below instituted this suit. Plaintiff's declaration in it was filed on June 6, 1932. A default was entered July 5, 1932, against International Shoe Company and Peters Shoe Company for failure to plead answer, or demur to plaintiff's declaration. On August 2 1932, another default was entered against all of the defendants, International Shoe Company, Mabel Annabelle Bates, as administratrix of the estate of W. I Bates, and Peters Shoe Company, for failure to file a plea as permitted by an order of the court, under which order the court had on July 20, 1932, granted a motion to vacate the default of July 5, 1932. The last-mentioned order gave the defendants until the August rule day, 1932, within which to file their pleas to plaintiff's declaration. No pleas were filed by either of them, so on August 2, 1932, another default was duly taken and entered of record.
On July 27, 1932, the defendants attempted by petition and bond to remove the cause to the United States District Court. But this attempt proved unsuccessful as both the federal court and the state court refused to make the order required to effectuate a transfer of the cause from the circuit court of Dade county to the District Court of the United States.
On August 17, 1932, the defendants moved to vacate the default that had been entered against them on August 2, 1932. This motion was definitely and finally denied by the court on September 27, 1932, by an order which reads as follows:
'This cause coming on to be heard this day before me upon the joint and several motion of the defendants International Shoe Company, a corporation, Mabel Annabelle Bates, as Administratrix of the Estate of W. I. Bates, and Peters Shoe Company, designated as a corporation by the plaintiff, to vacate, set aside and declare null and void the default judgments heretofore entered against each of said defendants, as designated by the plaintiff, on the 2nd day of August, A. D. 1932, following the Rule Day in August, 1932, and for leave to file the separate and several pleas of said defendants as proffered in said motion and true copies of which pleas are attached to and made a part of said motion, and notice of said hearing having been duly given to the solicitors of record of the parties in this cause, and after argument of said motion by the respective parties by and through their counsel of record, and the court being duly advised in the premises.
'It is thereupon considered, ordered and adjudged that said Motion to vacate, set aside and declare null and void said default judgments, and for leave to file the separate and several pleas of said defendants tendered with said Motion, be and the same is hereby denied, to which ruling the defendants separately and severally except.
'Done and ordered at Miami, Florida, this 27th day of September, A. D. 1932.
'Worth W. Trammell, Judge.'
On December 3, 1932, defendants again attempted to open the default of August 2, 1932, by filing a motion which was as follows:
'Comes now International Shoe Company, a corporation, Mabel Annabelle Bates, as Administratrix of the estate of W. I. Bates, and Peters Shoe Company, designated as a corporation by the plaintiff herein, and respectfully move the court to vacate and set aside and declare null and void the previous order of this court entered and filed in this cause on the 27th of September, A. D. 1932, wherein and whereby the previous motion of these defendants filed herein on August 17th, 1932, to vacate and set aside a certain default judgment entered against said defendants on the 2nd day of August, A. D. 1932, and for permission to file pleas to the declaration of the plaintiff herein was denied, and further moves the court to vacate, set aside and declare null and void the defaults and default judgments entered against these defendants on August 2nd, 1932, and for permission to file pleas of the defendants attached to and made a part of the motion of these defendants filed in this cause on August 17th, 1932, and for grounds of this motion, respectfully show and represent unto the court as follows:
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Hewitt v. International Shoe Co.
...Court, Dade County; Worth W. Trammell, Judge. On motion to recall mandate for purpose of rehearing. Motion denied. For former opinion, see 154 So. 838. Blackwell & Gray, of Miami, for plaintiff in error. Snedigar & Baya, of Miami, for defendants in error. OPINION PER CURIAM. Under section 4......