Hewitt v. International Shoe Co.

Citation154 So. 838,114 Fla. 743
CourtUnited States State Supreme Court of Florida
Decision Date11 May 1934
PartiesHEWITT 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.

COUNSEL

Blackwell & Gray, of Miami, for plaintiff in error.

Snedigar & Baya, of Miami, for defendants in error.

OPINION

DAVIS Chief Justice.

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:

'That this cause was instituted in this court on the 5th day of May, 1932; that on the 6th day of June, 1932, the defendants International Shoe Company, a corporation, and Peters Shoe Company, designated as a corporation by the plaintiff herein, filed their separate and several respective special appearances herein and motions to quash, wherein were set forth the grounds of said special appearances. That on the 4th day of July, 1932, a default was entered against all of said defendants; that on the 8th day of July, 1932, all of said defendants filed a motion with this court to vacate and set aside the default judgment entered against said defendants on the 4th day of July, 1932, as aforesaid, upon the ground, among others, that the appearances filed in this cause by the defendants as aforesaid were special appearances and not general, and that therefore said default judgment sought to be vacated was erroneously entered by the Clerk of this Court; that thereafter, on the 21st day of July, said motion of the defendants came on for hearing before this court, and after argument thereof, this court, by its order of that date, adjudicated among other things that the court had jurisdiction of the subject matter and of the parties and that the appearances of the defendants above set forth were general and not special, and further in said order vacated said defaults and/or default judgments but required said defendants to plead to the declaration of the plaintiff on or before the Rule Day in August, 1932. That on the 27th day of July, 1932, the defendants, International Shoe Company, a Delaware corporation, and Mabel Annabelle Bates, as administratrix of the estate of W. I. Bates, filed in the above styled cause their petition, duly verified, praying for the removal of this cause to the United States District Court in and for the Southern District of Florida, and pursuant to the Statutes of the United States of America in such cases so made and provided, filed their removal bond in this cause in the penal sum of $500.00 with good and sufficient surety thereon, which said bond was, on the 27th day of July, 1932, approved by the Clerk of this Court. That by reason of the above and foregoing, the above entitled cause was automatically removed to the United States District Court in and for the Southern District of Florida, and by reason thereof, the jurisdiction of this Court to proceed in said cause, ceased until such time as said cause should be remanded by the United States District Court back to this Honorable Court. That notwithstanding the filing of the petition for removal, as well as the removal bond, as hereinabove set forth, plaintiff, on or before the Rule Day in August, 1932, same being the first day of said month, filed his praecipe for default with the Clerk of this Court, praying for the entry of the default judgment against all of the defendants to this action. That the Clerk of this Court thereupon, on the 2nd day of August, 1932, entered a default judgment against said defendants, notwithstanding the pendency in this Honorable Court of the petition and bond for removal of this cause, as hereinabove set forth. That thereafter, on the 17th day of August, 1932, these defendants filed their motion in this Honorable Court to vacate and set aside the default judgment entered against said defendants on the 2nd day of August, 1932, as aforesaid, and proffered with said motion certain pleas of said defendants, and prayed for permission to file the original of said pleas. That on or about that date, the Honorable Halsted L. Ritter, Judge of the Miami Division of the United States District Court for the Southern District of Florida, absented himself from the State of Florida, and returned thereto on or about November 1st, 1932. That on or about said date the plaintiff herein filed his motion in the United States District Court for the Southern District of Florida, seeking to remand this cause to this court; that the plaintiff herein failed and refused to take steps to argue and dispose of his motion to remand and these defendants, being desirous of disposing of the motion of the plaintiff to remand this cause back into this court, as aforesaid within a period of sixty days from August 2nd, 1932, did, within said sixty day period, by reason of the absence of Hon. Halsted L. Ritter from the State of Florida, as aforesaid, secure...

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2 cases
  • International Shoe Co. v. Hewitt
    • United States
    • United States State Supreme Court of Florida
    • March 31, 1936
  • Hewitt v. International Shoe Co.
    • United States
    • United States State Supreme Court of Florida
    • June 20, 1934
    ...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......

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