Peacock v. Feaster

• Decision Date: 30 January 1906
• Citation: 40 So. 74,51 Fla. 269
• Parties: PEACOCK et al. v. FEASTER.
• Court: Florida Supreme Court

40 So. 74

51 Fla. 269

PEACOCK et al. v. FEASTER.

Florida Supreme Court, Division A.

January 30, 1906

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

Action by Sue D. Feaster against J. B. Peacock and C. H. Hargraves. Judgment for plaintiff. Defendants bring error. Affirmed.

Rehearing denied February 20, 1906.

Syllabus by the Court

SYLLABUS

A declaration in an action of trover, alleging that the conversion took place 'on the --- day of March 1904,' is not open to attack by demurrer by reason of the day of the month being left blank, and where the declaration in other respects follows the statutory form a demurrer thereto is properly overruled.

In this state special demurrers in commonlaw actions have been abolished by statute.

It is too late, after a plea to the merits, for the defendants to demand a bill of particulars.

Our statutes permitting amendments of pleadings are very liberal but the matter of allowing or refusing such amendments must rest largely within the sound judicial discretion of the trial court, as that court must determine whether or not the amendment asked for is 'necessary for the purpose of determining in the existing suit the real question in controversy between the parties,' and whether or not it has been 'duly applied for,' and an appellate court will not disturb the ruling of the trial court either in granting or in denying such application, unless it is plainly made to appear that there has been an abuse of this judicial discretion.

Where there is more than one defendant in an action of trover, one or more defendants may be acquitted and a verdict and judgment taken against the others; the verdict and judgment being shaped so as to hold liable those only who are shown by the evidence to have been guilty of conversion.

In an action of trover against two defendants as copartners, under a plea of not guilty interposed by both defendants, either defendant has the right to introduce any competent evidence at the trial tending to show his nonliability.

Special or additional pleas amounting only to the general issue are properly stricken out on motion.

The denial of a motion for a continuance by the trial court will not be reversed by an appellate court, unless a palpable abuse of judicial discretion is clearly and affirmatively shown by the record.

In an action of trover, where the trespasser is an unintentional or innocently mistaken one, there should not be any deduction in his favor from the value of the property at the time and place of conversion for the cost of any value-enhancing labor bestowed thereon anterior to the time that the conversion becomes complete by actual removal from the owner's possession.

COUNSEL

Wm. Hocker and R. B. Bullock, for plaintiffs in error.

R. L Anderson and R. A. Burford, for defendant in error.

OPINION

SHACKLEFORD, C.J.

This is an action of trover, instituted by the defendant in error against the plaintiffs in error in the circuit court for Marion county. Trial was had, which resulted in a verdict and judgment for the defendant in error in the sum of $3,056.92 damages and $40 costs. Plaintiffs in error seek a reversal here by writ of error, assigning 44 errors. We see no useful purpose to be accomplished by discussing these assignments in detail, though we have given careful consideration to all that are argued here.

The thirty-Eighth assignment is based upon the overruling by the court of the demurrer interposed to the declaration. The principal attack made upon the declaration is that the exact date of the alleged conversion is not given therein; it being recited as having taken place 'on the --- day of March 1904.' Suffice it to say that no error was committed here, as we fail to see wherein the plaintiffs in error were harmed in any way by the day of the month being left blank. In other respects the declaration substantially followed the statutory form. See Leon v. Kerrison (Fla.) 36 So. 173. No motion was made for a bill of particulars, except at a later stage, as stated below, or for a compulsory amendment of the declaration, as provided in section 1043 of the Revised Statutes of 1892. Special demurrers are abolished in this state by section 1040 of the Revised Statutes of 1892. See Camp & Bros. v. Hall, 39 Fla. 535, 22 So. 792; State ex rel. Kittel v. Jennings (Fla.) 35 So. 986. Moreover, when the case was called for trial on the 6th day of May, 1905, one of the plaintiffs in error moved the court that the defendant in error be required to 'furnish him with a specification of the dates of the alleged acts of conversion and the quantity and kind thereof,' in response to which the defendant in error, though insisting that the motion was made too late, without any order of court thereon, stated that 'she intends to prove conversion between the dates of 27th of November, 1902, and March 31, 1904.' See Waterman v. Mattair, 5 Fla. 211; Mathis v. State, 45 Fla. 46, 34 So. 287.

The thirty-ninth and fortieth assignments are as follows:

'(39) That the court erred in its order of 22d of May, 1905, wherein it struck out the plea of defendant Charles H. Hargraves, filed in this cause on the 6th day of May, 1905.'

'(40) That the court erred in its order of 22d day of May, wherein it ordered that the plea of J. B. Peacock, filed on the 6th day of May, 1905, be stricken.'

The transcript discloses the following facts: On the 6th day of February, 1905, Charles H. Hargraves, on behalf of both himself and his codefendant, filed a plea of not guilty, upon which plea issue was joined by the plaintiff on the 7th day of February, 1905. On the 6th day of May, 1905, after the case had been called for trial, a jury impaneled, and one witness examined, C. H. Hargraves, one of the defendants, moved the court for leave to file an additional plea to the effect that the copartnership existing between him and his codefendant, J. B. Peacock, had been dissolved prior to the commission of the alleged acts of trover; said motion being supported by the affidavit of the attorney for the defendants. The trial court made an order allowing the plea to be filed, on conditions, and also discharging the jury and allowing the plaintiff 'five days to join issue or reply to the said pleas or amend the declaration as they see fit.'

On the 22d day of May, 1905, the plaintiff filed a motion to vacate the order allowing the plea to be filed, containing six grounds, which motion was...