Parkhurst v. Stone

• Decision Date: 15 November 1895
• Citation: 18 So. 594,36 Fla. 456
• Parties: PARKHURST v. STONE et al. (No. 1.)
• Court: Florida Supreme Court

18 So. 594

36 Fla. 456

PARKHURST v. STONE et al. (No. 1.)

Florida Supreme Court

November 15, 1895

Error to circuit court, Orange county; John D. Broome, Judge.

Action by G. N. Stone and C. G. Gove against E. C. Parkhurst. Judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. A general appearance in a suit waives all questions as to service of process, and amounts to a submission of the person of the defendant to the jurisdiction of the court.

2. After a general appearance a defendant may plead his personal privilege under the statute of being sued in the county of his residence, or in the county in which the cause of action accrued; but after such appearance a defendant cannot properly plead that service was had on him in a different judicial circuit than that in which the suit was instituted where it appeared that the cause of action accrued in the county and circuit where suit was instituted.

3. After a general appearance a defendant cannot limit or restrict such appearance in a plea subsequently filed.

4. A second plea alleged all the averments of a first plea and more. The first plea was stricken out, and trial had on the second. Held, in the absence of as bill of exceptions showing that defendant was deprived of any advantages under the plea upon which trial was had that he would have had if the first had been permitted to stand, no injury was shown by striking out the plea, though it might not have been the proper way to reach it.

5. There is a difference between a motion to strike out and a demurrer to a plea, and trial courts should not disregard the distinction.

COUNSEL A. W. Cockrell & Son, for plaintiff in error.

A. M Thrasher, for defendants in error.

OPINION

MABRY C.J.

Defendants in error sued plaintiff in error to recover money alleged to be due on a lease under seal. The declaration alleges the making of the lease by the parties, on the 17th day of March 1888; that it was under seal, and executed in the presence of two witnesses, and that, by its terms, plaintiffs contracted to lease to defendant a certain described storeroom, then being constructed, for the term of three years from the date of its completion; that the storeroom was subsequently completed, and defendant, in accordance with the contract occupied it from April, 1888, until the 1st day of May, 1889, and paid for said time the sum of $150 per month, the rent specified, but after May, 1889, defendant ceased to pay rent, and still fails and refuses to pay same.

The suit was instituted on the 5th day of February, 1890, and the amount demanded is the rent, as specified in the lease, from the 1st of May, 1889, up to and including the month of February, 1890, amounting to $1,500, and interest on the monthly installments of rent as they fell due. It is also alleged that defendant agreed in and by the lease to pay reasonable attorney's fees in the event he failed to pay the rent, and plaintiffs had to collect the same by legal process, and the sum of $200 is demanded on this account; and, further, that the lease was executed and the cause of action accrued in Orange county, state of Florida. The lease filed with the declaration, and referred to as being made a part thereof, concludes as follows:

'Witness our hands and seals, this, the 17th day of March, A. D. 1888. E. C. Parkhurst. [L. S.] G. N. Stone. [L. S.] C. G. Gove, [L. S.] by G. N. Stone, Attorney in Fact.

'Attest: A. M. Thrasher and Andrew Denham. Mattie G. Colborn and R. De V. Carroll, as to Stone and Gove.'

The acknowledgment of the lease in Hamilton county, Ohio, on the 24th day of March, 1888, recites the personal appearance of G. N. Stone and C. G. Gove, by G. N. Stone, his attorney, and that they acknowledged the signing and sealing of the lease to be their voluntary act and deed, for the purposes therein expressed. The acknowledgment of the execution of the lease by Parkhurst was made in Orange county, Fla., on the 26th of March, 1888.

The record shows a general appearance of defendant by attorneys on the 3d day of March, A. D. 1890. On the 10th day of March, 1890, defendant filed the following plea 'The defendant, Ed. C. Parkhurst, limiting the appearance filed hereon on the --- day of March, 1890, to the purpose of making this plea, says this court ought not to have or take jurisdiction of this cause, because he says that the defendant is a freeholder residing in Jacksonville, Duval county, in the Fourth judicial circuit of Florida, and is and was such resident and freeholder at and before the suit herein was commenced; that the service herein, to answer which he appears, was not had upon this defendant in said county of Orange, nor in the Seventh judicial circuit of said state, but was wholly outside of said Orange county, and outside of the Seventh judicial circuit of Florida, and in the city of Jacksonville, in Duval county, Florida, in the Fourth judicial circuit of the state of Florida; wherefore he prays that said cause be dismissed.' From the record before us it appears that the foregoing plea was demurred to, and a motion was also made to strike it out, and that the demurrer was sustained, and the plea stricken out. Subsequently defendant filed two pleas, the first one of which was stricken out on motion, and issue joined on the second, upon which the trial was had, and judgment rendered in favor of plaintiffs. The plea stricken out reads as follows: 'True it is the said defendant signed the contract in writing on the 17th day of March, 1888, a copy of which is attached to plaintiffs' said declaration, and that his signature was made thereto in the presence of A. M. Thrasher, the plaintiffs' attorney herein, and in the presence of Andrew Denham, as attesting witnesses; and true it may be that this defendant, on the 26th day of March, 1888, made the acknowledgment therein set forth as having been made before said Thrasher as a notary public; but this defendant avers that, at the time said contract was so signed and so acknowledged by this defendant, the said plaintiffs had not signed or otherwise executed the same. The defendant further avers that he has not seen the original of said written contract since he so signed and acknowledged it, nor has...