Prosser v. Orlando Bank & Trust Co.

• Decision Date: 24 January 1927
• Parties: PROSSER et al. v. ORLANDO BANK & TRUST CO.
• Court: Florida Supreme Court

111 So. 516

93 Fla. 177

PROSSER et al. v. ORLANDO BANK & TRUST CO.

Florida Supreme Court

January 24, 1927

En Banc.

Error to Circuit Court, Orange County; C. O. Andrews, Judge.

Action by the Orlando Bank & Trust Company against Harry C. Prosser and others on a note. Joint judgment for plaintiff against all defendants, and defendants bring error.

Reversed.

Ellis C.J., dissenting.

Syllabus by the Court

SYLLABUS

Statute held not to authorize joint action against maker and one becoming indorser in regular course after original delivery of negotiable instrument (Rev. Gen. St. 1920, § 4733). Section 4733, Revised General Statutes 1920 (section 1 chapter 6486, Laws 1913), authorizes a joint action against the maker and indorser of a promissory note or other negotiable instrument, when the indorsement is made 'at or before the execution and delivery thereof.' It does not authorize a joint action against the maker and one who becomes indorser in the regular course of business after original delivery.

Statute authorizing joint action against maker and indorser of negotiable instrument, limits it to persons becoming liable prior to delivery to original payee (Rev. Gen. St. 1920, § 4733). Section 4733, Revised General Statutes 1920, expressly qualifies the action and limits it to persons who have become liable on the note or other negotiable instrument prior to its delivery to the original payee.

Motion in arrest of judgment goes to legal sufficiency of pleadings to sustain findings made; in suit on note against defendants jointly where pleadings do not show joint liability on face motion in arrest of judgment on joint verdict should be sustained (Rev. Gen. St. 1920, § 4733). A motion in arrest of judgment goes to the legal sufficiency of the pleadings to sustain the findings made. Where suit is brought on a promissory note against defendants jointly and upon the face of the pleadings joint liability is not shown, a joint verdict cannot be rendered against such defendants and a motion in arrest of judgment should be sustained.

COUNSEL

Chas. P. Dickinson, of Orlando, for plaintiffs in error.

OPINION

LONG Circuit Judge.

On the 19th day of May, 1922, Orlando Bank & Trust Company, the plaintiff in the court below, filed its declaration against Harry C. Prosser, Sinclair De Laney, Virginia Lee Floding (unmarried), and Forrest A. Kilgore, defendants, in an action on a promissory note. The declaration alleges the defendant Prosser to be the maker of the note, and the defendant De Laney the payee. After the execution and delivery of the note by the maker, the payee, De Laney, indorsed the same to the defendant Floding, who indorsed the same to the defendant Kilgore, who, before maturity thereof, indorsed the same to the plaintiff. Pleas were filed by the several defendants, to which demurrers and motions to strike were overruled by the court, and on the 22d of November, 1924, a trial was had which resulted in a verdict for the plaintiff, and upon the 16th of December, 1924, a joint judgment was entered against all of the defendants as follows:

'Whereupon it is considered and adjudged that the plaintiff, Orlando Bank & Trust Company, have and recover of the defendants Harry C. Prosser, Sinclair De Laney, Forrest A. Kilgore, and Virginia Lee Floding (widow), their damages in the sum of $275 as principal sued for herein, and the further sum of $77 as interest thereon, together with the costs of this action herein taxed at $19.18, together with $-----, hereby fixed as a reasonable attorney's fee to be allowed plaintiff's attorney herein, for all of which let execution issue. The said Harry C. Prosser is principally liable hereunder as the maker of the note sued upon, and the said Sinclair De Laney, Forrest A. Kilgore, and Virginia Lee Floding are secondarily liable as indorsers thereof.'

Motions for new trial were filed by the defendants, which were denied by the court. Thirty-eight assignments of error were filed by the defendants Prosser, De Laney, and Kilgore, attacking the several orders of the court made in settling the pleading and in the admission of certain evidence and directed to the charge of the court, none of which have been argued and are therefore treated as abandoned. During the proceedings the defendant Virginia Lee Floding on November 20, 1924, filed her plea in abatement, to which a demurrer was filed, which demurrer was sustained by the court on the 21st day of November, 1924. On the 25th of November, 1924, the defendant Virginia Lee Floding filed a motion in arrest of judgment, which motion was denied, and on the 16th of December final judgment entered against all of the defendants. The assignments of error filed by the defendant Virginia Lee Floding are:

First, the court erred in sustaining the demurrer of the plaintiff to the plea in abatement of the defendant Virginia Lee Floding.

Second, the court erred in overruling the defendant Virginia Lee Floding's motion in arrest of judgment.

Third, the court erred in entering final judgment on the verdict in favor of the plaintiff.

It appears from the declaration in this case that the note was made by defendant Harry C. Prosser to Sinclair De Laney, and that Sinclair De Laney, subsequent to delivery thereof, indorsed the same to Virginia Lee Floding, who thereafter indorsed the same to Forrest A. Kilgore, who indorsed to the plaintiff, the appellee herein. A demurrer was filed to the...