Johnson v. Clutter Music House

• Decision Date: 05 March 1908
• Citation: 46 So. 1,55 Fla. 385
• Parties: JOHNSON v. CLUTTER MUSIC HOUSE.
• Court: Florida Supreme Court

46 So. 1

55 Fla. 385

JOHNSON v. CLUTTER MUSIC HOUSE.

Florida Supreme Court, Division A.

March 5, 1908

Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Action by the Clutter Music House against Charles W. Johnson. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

The action of replevin is not brought for the purpose of recovering the amount which might be found to be due from the defendant to the plaintiff on account, but to recover the property in dispute.

In an action of replevin, where the goods have been redelivered to the defendant upon his forthcoming bond, a verdict in the following form: 'We, the jury, find a verdict in favor of the plaintiff in the sum of one hundred and twenty-six dollars and seventy cents'--is fatally defective, and is insufficient to support a judgment entered thereon.

The language of paragraph 2 of section 2188 of the General Statutes of 1906, relating to the judgment in an action of replevin, where the goods have been redelivered to the defendant upon his forthcoming bond, is mandatory; and a judgment is fatally defective which is not entered in substantial compliance with its requirements.

COUNSEL Jones & Pasco, for plaintiff in error.

OPINION

SHACKLEFORD C.J.

This is an action of replevin, instituted by the defendant in error against the plaintiff in error in the circuit court for Escambia county, to recover the possession of a piano alleged to be of the value of $385. There was a plea of not guilty. The property was redelivered to the defendant upon his forthcoming bond. A trial was had before a jury, which resulted in the following verdict: 'We, the jury, find a verdict in favor of the plaintiff in the sum of one hundred and twenty-six dollars and seventy cents ($126.70). T. N Adams, Foreman.' Upon this verdict the following judgment was entered: 'It is therefore considered by the court that the said plaintiff do have and recover of and from the said defendant, as principal, and Wm. Ray and Wm Camp, as sureties upon the forthcoming bond of said defendant, the aforesaid sum of one hundred and twenty-six and 70/100 dollars, together with his cost herein expended and now here taxed at $-----, and that said plaintiff do have execution therefor, to be levied on the goods, chattels, lands, and tenements of the said defendant, and the said sureties of the forthcoming bond and to said plaintiff delivered.'

A writ of error to this judgment was sued out, returnable to the 2d day of January, 1908. Seven errors are assigned; but, in view of the conclusion which we have reached, it becomes unnecessary to discuss them in detail.

We find from the evidence that the defendant had purchased a piano on the installment plan from John M. Clutter for the sum of $385, and had executed a contract by which he agreed to pay $10 cash and $10 per month until the full amount of the purchase price was paid, with interest from maturity at the rate of 8 per cent. per annum. It was also stipulated in the contract that the title was to remain in the seller until the full amount of the purchase money had been paid. There is no occasion to set out the other features of the evidence.

The defendant filed both a motion for a new trial and a motion in arrest of judgment, each of which was overruled, and exceptions duly taken to the rulings, and these rulings form the basis for two of the assignments.

Paragraph 2 of section 2188 of the General Statutes of 1906 provides that, where the goods have been redelivered to the defendant upon his forthcoming bond, 'the plaintiff shall take judgment for the property itself and against the defendant and the sureties...