Keen v. Brown

• Citation: 35 So. 401,46 Fla. 487
• Parties: KEEN v. BROWN et al.
• Decision Date: 17 November 1903
• Court: United States State Supreme Court of Florida

35 So. 401

46 Fla. 487

KEEN v. BROWN et al.

Florida Supreme Court, Division B.

November 17, 1903

Appeal from Circuit Court, Gadsden County; John W. Malone, Judge.

Bill by Sherod S. Keen against D. W. Brown and T. J. Summerall executors of John V. Brown. Decree for defendants, and plaintiff appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. The order of a circuit judge granting change of venue to a county in another circuit need not state the ground of the transfer if this is sufficiently shown by the whole record. Smith v. Gibson, 14 Fla. 263, and Swepson v. Call, 13 Fal. 337, distinguished.

2. The statute authorizing change of venue on account of the prejudice of the judge of the court where the suit is pending has application as well to prejudice in favor of the adverse party as to prejudice against the party making the application for transfer.

3. A plea in equity setting up a former judgment in bar must set forth so much of the pleadings or proceedings in the former suit as will suffice to show that the same point was there in issue as in the pending suit.

4. The proper office of a plea in equity is to bring forth fresh matter not apparent in the bill, and a plea which sets forth nothing except what appears on the face of the bill is bad and should be overruled.

5. The defense of res adjudicata may be raised by demurrer where the facts supporting it appear from the bill of complaint.

COUNSEL A. J. Henry and Geo. P. Raney, for appellant.

B. H Palmer, for appellees.

The appellant, complainant below, filed a bill on June 25, 1895, against John V. Brown, the testator of the present defendants, alleging a partnership between them, terminated by the act of the defendant, and praying an accounting. The bill further alleged that the defendant Brown had obtained two judgments against the complainant based upon matters relating to the partnership, and for that reason not properly cognizable in a court of law, and averred reasons why he was prevented from resisting or appealing from one of these judgments, and prayed an injunction restraining their enforcement.

The complainant filed a petition that the cause be transferred to another circuit because of the prejudice of the judge of the circuit in which it was then pending; supporting the petition with an affidavit alleging prejudice on the part of the judge in the defendants' favor, for reasons set out in the affidavit. Upon hearing, this petition was granted, and the cause transferred to Gadsden county, in the Second Circuit.

Thereafter the defendants filed a plea alleging that their testator had had no dealings with complainant since the 7th day of June, 1895, and that 'as to so much and such parts of said bill as seeks an accounting concerning the dealings and transactions therein alleged to have taken place between the said complainant and the said John V. Brown, defendants' testator, at any time before the 7th day of June, 1895, these defendants say that, previously to the filding of complainant's said bill, the said John V. Brown, defendants' testator, sued the complainant in the justice court in said county and state, and recovered judgment against the said complainant in the sum of $50, as set forth in complainant's said bill, and that complainant appealed said cause to the county court of Columbia county, Florida, wherein said cause was again tried, and judgment recovered for the sum of $50, all of which is a matter of record in said courts; and thereafter the defendant sued the said complainant in the circuit court of Columbia county, Florida, and recovered judgment against the said complainant in the sum of $1,693.85, with interest from the 20th day of January, 1894, balance due on account between them, as set forth in complainant's said bill'; that the matters set forth in the bill were res adjudicata, 'there being here in said cause set up an identity in the things sued for, identity of the cause of action, identity of the persons and parties to the action, and identity of the quality in the complainant and defendants' testator, John V. Brown.'

This plea was set down for hearing, and after argument the court below allowed the plea and dismissed the bill. From this decree the complainant appeals to this court.

OPINION

MAXWELL J. (after stating the facts).

The first error assigned by the appellant is the order transferring the cause to Gadsden county. It is objected that the order does not show a ground of transfer under the statute. The order does not state the ground of the court's action, but recites that, upon reading and filing the petition, affidavit, and motion of complainant for change of venue in the cause, it is considered and ordered as follows, to wit: That the prayer of the petition be granted and change of venue to Gadsden county be awarded, and that the papers be transmitted to the clerk of that county. The record contains the petition and affidavit upon which the order was made, and these state a ground of removal, i. e., prejudice on the part of the judge--a ground, the truth of falsity of which lay peculiarly within the knowledge of the judge. When he granted the petition and ordered the transfer, he adjudicated the question of the existence of the ground for removal so alleged, and the ground adjudged to exist sufficiently appears from the...