Mckinnon v. Johnson

Decision Date02 March 1909
Citation48 So. 910,57 Fla. 120
PartiesMcKINNON v. JOHNSON et al.
CourtFlorida Supreme Court

In Banc. Error to Circuit Court, Jackson County; J. Emmet Wolfe Judge.

Action by Seth Johnson, as administrator, and others, against Daniel L. McKinnon. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration.

In an action of ejectment, all matters of legal defense (excepting special denials of possession and denials of adverse claim under the statute) may be given in evidence under the plea of not guilty. Special pleas of matter affecting the legal title or in estoppel should be struck out.

Where a demurrer is interposed to a plea, when a motion to strike out would have been the proper method of attack, but such plea is so faulty that the court would have been justified in striking it out of its own motion, the sustaining of the demurrer will be considered harmless error.

In an action of ejectment, the striking out of a plea setting up matters admissible in evidence under the general issue or the sustaining of a demurrer to such plea will not preclude proof at the trial under the general issue of such matters attempted to be so pleaded.

General objections to evidence proposed, without stating the precise grounds of objection, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial, improper, and inadmissible for any purpose or under any circumstances.

A party who objects to the competency of a witness or to proffered evidence should state specifically the grounds of his objection, in order to apprise the court and his adversary of the precise objection he intends to make.

An appellate court will take judicial notice of its own opinions, and, although the judgment and the mandate entered and issued express the decision of the court, yet upon a second appeal or writ of error in the same case the court may properly examine the opinion in order to determine what matters were considered, upon what grounds the judgment was entered, and what has become settled for future disposition of the case.

In an action of ejectment, where the defendant relies upon adverse possession for the requisite statutory period under a void sheriff's deed as color of title, and he offers in evidence a petition filed by the plaintiffs in the same court for a 'writ and order of restitution commanding' the defendants thereto, of whom the defendant in ejectment was one, 'to restore and return to the possession' of the plaintiffs the lands in controversy, the answer of such defendant thereto, the plaintiffs' demurrer to such answer, and the judgment of the court overruling the demurrer, allowing the plaintiffs time in which to file a replication to the answer, in default whereof such petition 'shall stand dismissed out of the court without any further order of dismissal,' it is error to exclude such proffered documentary evidence on the grounds of objection of irrelevancy and immateriality. Even if admissible for no other purpose, such evidence was admissible as an admission on the part of plaintiffs that the defendant was in the possession of the lands at the time of the filing of such petition.

In order to sustain a defense of res judicata, there must have been a final judgment or decree rendered in the former action or suit. Where the judgment offered in evidence is a judgment overruling a demurrer, with leave to the plaintiffs, against whom such judgment was rendered, to file a replication by a day certain, in default of which their petition 'shall stand dismissed out of the court without any further order of dismissal,' and it is not made to appear that the conditions of such judgment were ever complied with, it must be held to be not a final, but a conditional, judgment.

An issue determined by the appellate court cannot be relitigated in the lower court on a new trial. But an issue left undertermined by the appellate court is open for a new trial. An adjudication by an appellate court upon a writ of error in an action of ejectment that the defendant's paper title fell, without passing upon any title which defendant might have acquired by adverse possession for the requisite statutory period, does not preclude the defendant from establishing such adverse possession upon a new trial provided he is able to do so by competent evidence.

A charge directing a verdict for the plaintiffs should never be given unless it is clear that there is no evidence whatever adduced that could in law support a verdict for the defendant. If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue, it should be submitted to the jury as a question of fact, and not taken from them and passed upon by the judge as a question of law.

COUNSEL D. L. McKinnon, in pro. per.

Liddon & Carter, for defendants in error.

OPINION

SHACKLEFORD J.

This case comes here for the second time on writ of error. For the former opinion, see Johnson v. McKinnon, 54 Fla 221, 45 So. 23, 13 L. R. A. (N. S.) 874, wherein will be found a statement of the facts in which is given a r esumé of former litigation out of which this action of ejectment arose. Also see McKinnon v. Johnson, 54 Fla. 538, 45 So. 451, which was the second time the appeal in the equity suit came before this court. The first opinion rendered therein will be found reported as Johnson v. McKinnon, 45 Fla. 388, 34 So. 272.

We start out with the proposition that all the points adjudicated upon the former writ of error have become the law of this case, and are no longer open for discussion or consideration. Wilson v. Fridenberg, 21 Fla. 386; Doyle v. Wade, 23 Fla. 90, 1 So. 516, 11 Am. St. Rep. 334; Hart v. Stribling, 25 Fla. 435, text 445, 6 So. 455, text 456; State v. White, 40 Fla. 297, text 318, 24 So. 160, text 167; Anderson v. Northrop, 44 Fla. 472, 33 So. 419; Louisville & Nashville R. R. Co. v. Jones, 50 Fla. 225, 39 So. 485; Hoodless v. Jernigan, 51 Fla. 211, 41 So. 194; Jacksonville Electric Co. v. Bowden, 54 Fla. 461, 45 So. 755, 15 L. R. A. (N. S.) 451; Valdosta Mercantile Co. v. White, 56 Fla. ----, 47 So. 961.

The declaration in this case is in the usual form. The defendant filed a disclaimer as to a portion of the lands, a plea of not guilty as to the residue, and also a special plea, in which he attempted to set up some former adjudication as being in the nature of res judicata. It would seem that a demurrer was interposed to this special plea, which was sustained, although the transcript is not clear upon this point. However, it is a matter of no moment, even though error is attempted to be predicated upon such alleged ruling, for the reason that the defendant by leave of court filed an amended plea in which he more fully set out the matters relied upon in his first special plea. A demurrer was also interposed and sustained to this amended special plea, which ruling also forms the basis for an assignment of error. We do not copy such plea, the demurrer thereto, or the ruling thereon, for the reason that this assignment must fall, whether the matters undertaken to be set up in such plea were well pleaded or not. This court in Coffee v. Groover, 20 Fla. 64, expressly held that 'in ejectment all matters of legal defense (excepting special denials of possession and denials of adverse claim under the statute) may be given in evidence under the plea of not guilty. Special pleas of matters affecting the legal title or in estoppel should be struck out. A judgment sustaining a demurrer to such pleas will not preclude proof at the trial of the facts pleaded.' This holding was approved and followed in Hagan v. Ellis, 39 Fla. 463, text 472, 22 So. 727, text 729, 63 Am. St. Rep. 167. It may well be, notwithstanding the intimation in Coffee v. Groover, supra, that such pleas could be reached by demurrer, the proper method of attack would be by motion to strike out. See Wade v. Doyle, 17 Fla. 522, text 531; Weiskoph v. Dibble, 18 Fla. 24, text 28; Neal v. Spooner, 20 Fla. 38; Horne v. Carter's Adm'rs, 20 Fla. 45; Barco v. Fennell, 24 Fla. 378, 5 So. 9; Buesing v. Forbes, 33 Fla. 495, 15 So. 209; Parkhurst v. Stone, 36 Fla. 456, text 462, 18 So. 594, text 595; Camp v. Hall, 39 Fla. 535, 22 So. 792; Little v. Bradley, 43 Fla. 402, 31 So. 342; Atlantic Coast Line R. Co. v. Benedict Pineapple Co., 52 Fla. 165, text 177, 42 So. 529, text 533; Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, text 428, 43 So. 318, text 326. From an examination of these as well as other decisions referred to therein, it would seem clear that this court is now committed to the doctrine that a special plea tendering an issue covered by the plea of not guilty is not for that reason demurrable, but that the proper method of attacking such a plea is by motion. It may well be that the plea in question was also open to attack by proper and sufficient grounds of demurrer for the reason that it was not sufficiently comprehensive or broad in its scope to constitute a full reply to the allegations of the declaration. See Atlantic Coast Line R. Co. v. Crosby, supra. Be that as it may, we are clear from an examination of the plea in question that the court would have been justified in striking it out of its own motion. Therefore no reversible error was committed in sustaining the demurrer thereto. Hooker v. Forrester, 53 Fla. 392, 43 So. 241; O'Brien v. State, 55 Fla. 146, 47 So. 11; Poppell v. Culpepper, 56 Fla. ----, 47 So. 351; Hoopes v. Crane, 56 Fla. ----, 47 So. 992.

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