Largay Enterprises Inc. v. Berman

• Decision Date: 17 October 1952
• Court: Florida Supreme Court
• Parties: LARGAY ENTERPRISES INC. et al. v. BERMAN et al.

Page 366

61 So.2d 366

LARGAY ENTERPRISES INC. et al. v. BERMAN et al.

Supreme Court of Florida, Special Division B.

Oct. 17, 1952.

Rehearing Denied Nov. 24, 1952.

Fowler, White, Gillen, Yancey & Humkey, Cody Fowler and Ralph A. Marsicano, Tampa, for appellants.

MacFarlane, Ferguson, Allison & Kelly, John M. Allison and Charles F. Clark, Tampa, for appellees.

ROBERTS, Justice.

This is an appeal from a judgment entered in proceedings instituted in the court below by plaintiff-appellees against the defendant-appellants to recover the purchase price of certain corporate stock. It was alleged that such stock had been sold by the plaintiffs to the defendants and delivered by the plaintiffs to an escrow agent appointed by the defendants and authorized by them to accept delivery of the stock; that the defendants confirmed the purchase of the stock in writing and delivered to the escrow agent the check of one of the defendants, Largay Enterprises Incorporated, for said purchase price; that payment was subsequently stopped on the check; and that the defendants are jointly and severally liable for the payment of the purchase price of the stock as 'joint adventurers.'

No service was ever perfected against the defendants George H. Largay, Sr., and John A. Largay, and hence they were abandoned as parties defendant. Service was made on George H. Largay, Jr., as an individual, and he was also served with summons in an effort to perfect service against Largay Enterprises Incorporated, a foreign corporation, and hereinafter referred to as the 'corporate defendant.' The summons with which we are here concerned, being the latest in point of time, was dated January 10, 1950, and was returned by the Sheriff as having been served on the corporate defendant on January 13, 1950, by delivering a copy thereof to George H. Largay, Jr., 'as a Director of said Corp., in the absence of the President, Vice President, and other heads, and in the absence of the Cashier, Secretary, Treasurer and the General Manager * * *.'

Pleas to the merits were filed by George H. Largay, Jr., his principal defense being that he was not a party to the transaction. The corporate defendant filed a special appearance on the February 1950 Rule Day, and attacked the sufficiency of the service of the January 10th, 1950, summons by motion to quash and by plea in abatement, both dated February 4, 1950. The cause came on for trial in November of 1951 and was tried before a jury on the merits as to both defendants, and on the corporate defendant's jurisdictional plea in abatement. No pleas to the merits were ever filed by the corporate defendant. A verdict in favor of the plaintiffs was returned by the jury, motions for new trial denied, and judgment in the amount of $47,550 with interest in the amount of $7,084.95, was entered against George Largay, Jr., and the corporate defendant. Both George Largay Jr. and the corporate defendant have appealed from such judgment.

As to the defendant George H. Largay, Jr., the principal issue here is whether the evidence was sufficient to show that he participated in the transaction respecting the purchase and sale of the stock as a 'joint adventurer.' The conflicts and inconsistencies in the evidence were resolved against his contentions by the jury, and their verdict was sustained by the trial judge in his denial of the motion for new trial. We have carefully reviewed the evidence on this question--which it would serve no useful purpose to relate here--and are of the opinion that it supports the verdict. No harmful error having been found as to the defendant George H. Largay, Jr., the judgment is affirmed as to this defendant.

As to the corporate defendant, an entirely different picture is presented. As heretofore noted, the corporate defendant filed no pleas to the merits; contending from the inception of the suit that the plaintiffs had failed to effect service against it and that the court was thus without jurisdiction to try the cause against it. From and after the date of the service of the January 10th, 1950, summons upon George H. Largay, Jr., the proceedings in the trial as to the corporate defendant are shown by the record to be as follows: On January 19th, 1950, the Sheriff filed his return showing service of summons on the corporate defendant in the manner hereinabove noted; that is, by delivering a copy thereof to George H. Largay, Jr., 'as a Director' and in the absence of the named officers. On February 4th, 1950, the corporate defendant filed its special appearance in the cause for the sole purpose of testing the jurisdiction of the court 'upon the ground that proper service of process has not been had on it.' Upon this same date, the corporate defendant also filed a motion to quash the service of summons upon it and a plea in abatement to the jurisdiction of the court, as above noted. As grounds for its plea in abatement, it alleged: 'That process was not served upon the President, or Vice-President or other head of said corporation, nor on the cashier, treasurer, secretary or general manager, nor upon any director of such company nor upon any officer or business agent, resident in the State of Florida, nor upon any agent transacting business for it in the State of Florida. That said process was attempted to be served upon one George H. Largay, Jr., who at the time of said attempted service was not and is not now any officer, director, or agent of said corporation upon whom process could be served to bind said corporation.'

On September 22, 1950, an order was entered in the cause by the trial judge, reciting that the cause came on to be heard 'upon the Motion to Dismiss this suit filed by the defendant, George H. Largay, Jr., and upon the Motion to Quash Service of Summons filed by the defendant, Largay Enterprises Incorporated,' and denying both motions. As to the motion to quash service of summons, the trial judge stated in the order that this motion was denied for the reason that the Court was of the opinion 'that the proper method of raising the question as to whether the person upon whom service was attempted to be had was a proper person upon whom process could be served to bind said corporate defendant, must be raised by plea in abatement.' This order also stated that 'The said defendants are hereby allowed twenty (20) days from the date of this order within which to plead to the declaration.'

Pleas to the merits were then filed by George H. Largay, Jr., but, as heretofore noted, not by the corporate defendant. No default judgment was sought by the plaintiffs against the corporate defendant for failure to plead to the merits as required by the September 22nd, 1950, order. The record is silent as to any efforts on the part of the corporate defendant to bring to the attention of the trial judge the fact that a plea in abatement had actually been filed by it on February 4, 1950, and had not been disposed of, nor does the record show that this defendant sought a trial on the issues made by its plea in abatement in advance of the jury trial. The case was set for trial before the jury on November 29, 1951. On this date, a pre-trial conference was held by the trial judge, the outcome of which is described in an order of the trial judge dated November 30, 1951, as follows:

'The above captioned case, coming on for trial before me on the 29th day of November, 1951, and it appearing that argument on the question as to the scope of the issues to be tried as to the defendant, Largay Enterprises Indcorporated, would be helpful to the Court a conference in the nature...