Hewitt v. International Shoe Co.

• Decision Date: 03 May 1933
• Citation: 110 Fla. 37,148 So. 533
• Parties: HEWITT v. INTERNATIONAL SHOE CO. et al.
• Court: Florida Supreme Court

148 So. 533

110 Fla. 37

HEWITT v. INTERNATIONAL SHOE CO. et al.

Florida Supreme Court

May 3, 1933

En Banc.

Error to Circuit Court, Dade County; Worth W. Trammell, Judge.

Action by T. W. Hewitt, as administrator of the estate of Freida Hewitt, deceased, against the International Shoe Company and others. To review a judgment of non prosequitur against the plaintiff for want of prosecution, the plaintiff brings error. On motion to dismiss the writ of error.

Motion denied.

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

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

OPINION

DAVIS Chief Justice.

Plaintiff in error, hereinafter referred to in this opinion as the plaintiff, on the 5th day of May, 1932, filed his suit against the defendants in error, hereinafter referred to in this opinion as the defendants, in the circuit court of Dade county, Fla., on the common-law side thereof, seeking to recover damages for personal injuries to Freida Hewitt, now deceased. It is alleged in the declaration that Freida Hewitt was riding in an automobile driven and operated by W. I Bates, as a gratuitous guest, passenger, and invitee of said W. I. Bates, also now deceased.

On the 20th day of July, 1932, an order was entered by the court below requiring the defendants to file their pleas to the declaration of the plaintiff on or before the rule day in August, 1932. However, before the rule day in August, 1932, and on the 27th day of July, 1932, the defendants presented to the court below their petition for the removal of said cause to the United States District Court in and for the Southern District of Florida, together with their notice of intention to present said petition and removal bond, which said bond was approved by the clerk of the court below. Thereafter, on the 27th day of July, 1932 the lower court entered an order denying the petition of the defendants for the removal of said cause to the United States District Court. Subsequently, the defendants filed in the United States District Court a proper transcript of the record of the proceedings had in the court below.

The defendants did not file in the state court the pleas which the order of the state court required them to file on the rule day in August, and accordingly a default judgment was entered on that date against said defendants by the clerk of the circuit court. Thereafter, on August 17, 1932, the defendants filed their motion to vacate said default judgment. Tendered with said motion were certain proposed pleas. This motion came on for hearing, and the lower court on September 27, 1932, entered an order denying the motion to vacate default, and refusing leave to file the pleas.

The spring term of the circuit court ended on November 7, A. D 1932, and on November 8, A. D. 1932, the fall term of said court began. This term ended February 13, A. D. 1933. The clerk certifies that no special or extraordinary term of court was called, convened, or held between the 2d day of August, 1932, and the 8th day of November, 1932. See section 4819, Comp. Gen. Laws, section 3052, Rev. Gen. St., for statutory terms of the circuit court of Dade county.

On November 17, 1932, the United States District Court made an order remanding the cause to the state court. This was therefore an order filed in the cause on a day within the fall term. On November 1, 1932, the state court had made an order setting December 5, 1932, as the date for the trial of the cause on default. On December 3, 1932, the defendants, who were then in default, and who had been in default since August 2, 1932, filed a motion to vacate the order of September 27, 1932, which order of September 27, 1932, had refused to vacate the default of August 2, 1932.

The latter motion was objected to by plaintiff on the ground that (1) the motion to vacate the default was made more than sixty days after the entry of the default, and was therefore in violation of section 4287, Comp. Gen. Laws, section 2621, Rev. Gen. St.; (2) that no showing was made that the order of September 27, 1932, had been improperly made or entered; (3) that the defendants were in contempt of court for failure to answer statutory interrogatories as provided by section 4406, Comp. Gen. Laws, section 2734, Rev. Gen. St,; (4) that it affirmatively appeared from the record that defendants were and had been trifling with the court.

The circuit judge thereupon entered the following order which is assigned as error on this appeal:

'This cause coming on to be heard before me upon the motion of the defendants filed in this cause on December 3rd, 1932, to vacate a previous order of this court entered on to-wit: the 27th day of September, 1932, wherein and whereby a previous motion to said defendants filed in this cause on August 17th, 1932, to vacate the default judgment entered against said defendants on August 2nd, 1932, and for permission to said defendants to file pleas to the declaration proffered with said motion was denied, and this cause also coming on to be heard upon the motion of the defendants filed in this cause on August 17th, 1932, to vacate and set aside the default judgment entered against, said defendants on August 2nd, 1932, and for permission to said defendants to file pleas proffered with said motion, and it appearing to the court that a term of this court has not been held between the date of the entry of said default judgment and the filing of both of said motions, and that said motions were filed at the same term wherein and whereat said default judgment was entered and that said term has not yet expired or ended, and it further appearing to the court that the rights of the defendants will be prejudiced if they are denied the right and privilege of filing the proffered pleas and the Court being duly advised in the premises, after argument of counsel for the respective parties hereto,

'It is thereupon considered, ordered and adjudged that the motion of the defendants filed in this cause on December 3rd, 1932, to vacate the previous order of this court entered on to-wit; the 27th day of September, 1932, be and the same is hereby granted, and that said order of this court entered on September 27th, 1932, as aforesaid be and the same is hereby rescinded, cancelled and declared null void and of no effect, and

'It is further considered, ordered and adjudged that the motion of the defendants filed in this cause on August 17th, 1932, to vacate the default judgment entered against said defendants on the 2nd day of August, 1932, and for permission to file pleas of the respective defendants to the declaration, proffered with said motion, be and the same is hereby granted, and said default judgment entered in this cause on August 2nd, 1932, be and the same is hereby declared to be null and void and of no effect, and said defendants be and they are hereby allowed to file instanter the original pleas, true copies of which are proffered with and attached to said motion of said defendants filed in this cause on August 17th, 1932, as aforesaid.

'Done and ordered in Chambers at Miami, Florida, this 3rd day of January, A. D. 1933.

'Worth W. Trammell, Judge.'

The judgment to which the writ of error was sued out is as follows:

'It appearing to the Court that the plaintiff has declined to join issue on the defendant's pleas in the above entitled cause, and has declined to proceed further herein, and it further appearing to the Court that the defendants are entitled to judgment non prosequitur, it is therefore,

'Considered, ordered and adjudged that judgment be and the same is hereby rendered in favor of the defendants and against the plaintiff, for want of prosecution. It is further ordered that the plaintiff take nothing by his plaint herein and that this cause stand dismissed at the plaintiff's cost, now and here taxed at $None.

'Done and ordered at the Court House in Miami, Florida on this the 4th day of January, A. D. 1933.

'Worth W. Trammell, Circuit Judge.'

The case is now before us on defendants in error's motion to dismiss the writ of error on the ground that a judgment of non prosequitur against a plaintiff is not a final judgment from which a writ of error will lie under section 4606, Comp. Gen. Laws, section 2901, Rev. Gen. St. That section and section 4615, Comp. Gen. Laws, section 2905, Rev. Gen. St., reads as follows:

'4606. (2901.) Final Judgments.--Writs of error shall lie only from final judgments, except as specified in section 4615.

'4615. (2905.) Writs of Error From Orders Granting New Trials.--Upon the entry of an order granting a new trial at law, the party aggrieved by such order may, without waiting for a final judgment in the cause, prosecute a writ of error to the proper appellate court, which shall review the said order, and if the cause be reversed, shall direct final judgment to be entered in the court below, for the party who had obtained the verdict in the court below, unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made and prevail.'

It will thus be seen that the real controversy presented by this writ of error is whether or not the court exceeded or improperly...