Paul v. Commercial Bank of Ocala

• Decision Date: 03 February 1915
• Citation: 68 So. 68,69 Fla. 62
• Parties: PAUL v. COMMERCIAL BANK OF OCALA.
• Court: Florida Supreme Court

68 So. 68

69 Fla. 62

PAUL v. COMMERCIAL BANK OF OCALA.

Florida Supreme Court

February 3, 1915

On Application for Rehearing, March 24, 1915.

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Action by the Commercial Bank of Ocala, a corporation, against R. H Paul. Judgment for plaintiff, and defendant brings error. Affirmed, and rehearing denied.

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; but this principle has no applicability to and is not decisive of points presented upon a second writ of error that were not presented upon the former writ of error, and consequently were not before the appellate court for adjudication.

A judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided.

The trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will be interfered with by an appellate court only when clearly abused.

Where no argument is made concerning errors which have been assigned, such errors will be deemed and treated as abandoned.

Where an action at law has been brought against several defendants and the evidence adduced at the trial fails to establish the liability of one of the defendants, the trial court may dismiss the action as to such defendant for the reason that there has been a misjoinder of such defendant, in accordance with the provisions of section 1372 of the General Statutes of Florida of 1906.

A verdict for the defendant should never be directed by the court, unless it is clear that there is no evidence whatever adduced that could in law support a verdict for the plaintiff. 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 to be determined by them, and not taken from the jury and passed upon by the court as a question of law.

COUNSEL L. N. Green, of Ocala, and Axtell & Rinehart, of Jacksonville, for plaintiff in error.

H. M Hampton and Wm. Hocker, both of Ocala, for defendant in error.

OPINION

SHACKLEFORD J.

For the second time R. H. Paul brings here for review a judgment recovered against him by the Commercial Bank of Ocala, a corporation. The opinion which we rendered upon the former writ of error will be found in 66 Fla. 83, 63 So. 265. As stated therein, the bank brought an action against 'R. H Paul, W. J. Hillman, S. A. Rawls, C. M. Sweat and F. L. Sweat, as late partners, formerly doing business under the name and style of S. A. Rawls & Company,' on a promissory note signed by S. A. Rawls & Co. Service of process was had on R. H. Paul alone. W. J. Hillman and S. A. Rawls appeared and pleaded. C. M. Sweat and F. L. Sweat were not served and did not appear. The action was dismissed as to Hillman upon the theory that he was not a partner and was not liable.

As we further stated therein:

'The real issue in the cause was upon the plea of R. H. Paul that he was never a member of the firm of S. A. Rawls & Company and liable on the note.'

As we also stated, 'a verdict 'for the plaintiff' was returned,' upon which a judgment was rendered and entered, which we copied in full. This judgment we reversed for the reason that it failed to adjudicate the issue made by the pleadings. We said that:

'Under the peculiar circumstances of this case, the irregularity of not naming the members of the firm against which the judgment purports to be rendered makes it proper to reverse the judgment. The real issue in the cause being whether Paul was a partner and liable on the note in controversy, the judgment should at least identify Paul as a member of the firm; there being no specific finding in the record that Paul was a member of the firm and liable on the note, even if such a finding would aid the judgment as rendered here.'

After the mandate had gone down, the pleadings remaining unchanged, the issue, which was stated in our former opinion, was submitted to another jury for determination, and the following verdict was returned:

'We, the jury, find for the plaintiff, and we find also that Mr. R. H. Paul was a member of the firm of S. A. Rawls & Co., and we assess the plaintiff's damages at $1,296 as principal and interest, and also $100 as attorney's fees. So say we all.'

Upon this verdict the following judgment was rendered:

'It is therefore considered and ordered by the court that the plaintiff the Commercial Bank of Ocala, a corporation under the laws of the state of Florida, do have and recover of and from the defendant R. H. Paul, as surviving partner of the firm of S. A. Rawls & Company, the sum of $1,296 as principal and $100 as attorney's fees, total $1,396, together with the costs of this suit, taxed at $9.52, for which let execution issue. And the defendant in mercy,' etc.

Prior to the second trial, a suggestion was filed of the death of S. A. Rawls, one of the defendants, who had filed a plea to the effect that the note which formed the basis of the action was 'the note of S. A. Rawls & Co.'

Before taking up for consideration any of the errors assigned, we think it advisable to dispose of a contention made by the defendant in error. After referring to the former opinion rendered by us, he states in his brief that 'this court decided that the form of the judgment which the Commercial Bank had then recovered was defective, and the bank has now recovered a similar judgment upon exactly the same evidence as was submitted at the former trial,' by reason whereof it is contended:

'It would therefore seem that the court now need only consider the form of the verdict, and the form of the judgment as now entered, and the charge of the court which was not assailed in the former trial; and all of the assignments of error now made, which are not based on the charge of the court, or the form of the judgment, or verdict, would not seem to be now open for consideration.'

In other words, the principle of what is known as the law of the case is invoked as being decisive of the points presented on this writ of error. It is undoubtedly true, as we have frequently held:

'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; but this principle has no applicability to and is not decisive of points presented upon a second writ of error that were not presented upon the former writ of error, and consequently were not before the appellate court for adjudication.'

See Florida East Coast Railway Co. v. Geiger, 66 Fla. 582, 64 So. 238.

It is also further true as we held in the cited case:

'A judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided.'

See the excerpt, which was quoted with approval therein, from the opinion rendered by Mr. Justice Brewer in Mutual Life Ins. Co. v. Hill, 193 U.S. 551, text 553, 24 S.Ct. 538, 48 L.Ed. 788.

It is important, then, to bear in mind just what points were discussed and decided in the opinion rendered on the former writ of error. It clearly appears in such opinion that, after stating what the real issue was, as made by the pleadings, we discussed and decided only two points: First, that the judgment failed to adjudicate such issue, for which reason we reversed the judgment; and, second, that we could not say that the trial court erred in refusing to direct a verdict for the defendant Paul. We stated that a number of contentions were made as to the rulings of the court as to the admissibility of evidence, but we did not even set forth such rulings of which complaint was made, much less discuss them or determine their correctness. It necessarily follows that this contention of the defendant in error has not been sustained.

The first assignment is that 'the court erred in admitting in evidence the note sued on in this case.' We find the ground of objection urged against the introduction of this note was 'that there was no proof that R. H. Paul in anywise authorized the signature of S. A. Rawls & Co. as binding him as a member of that partnership.' Even if we were to concede that no such proof had been adduced, that of itself would not render the note inadmissible. The testimony of S. A. Rawls, the first witness introduced on behalf of the plaintiff, which was prior to the proffer of the note, was to the effect that a copartnership had existed for several years under the name of S. A. Rawls & Co., of which S. A. Rawls, R. H. Paul, and others were members; that different notes had been executed from time to time in the due course of business by such copartnership; and that S. A. Rawls had executed the note in question in the name of such copartnership. Even if the testimony previously adduced had been to the effect that such copartnership had been dissolved prior to the execution of such note, as would seem to have been the case, that would not render the note inadmissible. We find that, prior to the proffer of the note, the plaintiff had also introduced as a witness Dr. J. C. Boozer, who had testified as follows:

'My name is Dr. J. C. Boozer, I am president of the Commercial Bank of Ocala, which position I have held for three years. I held the position of assistant manager of the Commercial Bank of Jacksonville when it was doing a branch business in Ocala and in that position I had connection with the making of loans and discounts. The Commercial Bank as a branch of the Jacksonville Commercial...