Reese v. Damato

• Decision Date: 29 November 1902
• Citation: 33 So. 462,44 Fla. 692
• Parties: REESE v. DAMATO.
• Court: Florida Supreme Court

33 So. 462

44 Fla. 692

REESE v. DAMATO.

Florida Supreme Court

November 29, 1902

Error to circuit court, Duval county; Rhydon M. Call, Judge.

Action by Henry W. Reese against Joseph Damato. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. A writ of error will not, upon the suggestion of the defendant in error, be dismissed on the ground that the transcript of the record shows no jurisdiction in the court below because the original affidavit for attachment was not embraced therein, where it contains the amended affidavit for attachment, defendant's traverse thereof, the trial verdict, and judgment for defendant, as directed by plaintiff in error, and no additional directions for making up the record were given by defendant.

2. A defendant in error in a common-law proceeding is not entitled to assign or have the appellate court consider alleged errors in the proceedings committed against him by the trial court.

3. If an appellate court tries the cause de novo, enters its own judgment upon such trial, and enforces such judgment by its own process, writ of error therefrom will, while pending prevent the judgment from which it was taken being used as an estoppel; but where the court issuing the writ of error does not try the cause de novo, but upon the record upon errors assigned, having power to affirm, reverse, or modify the judgment appealed from, or to enter its own judgment upon the case made by the record alone, even though it possesses power to enforce it by its own process, such writ of error, either with or without a supersedeas, will not, while pending, have the effect of suspending or annulling the effect of the judgment from which it was taken so as to devest such judgment of its force as an estoppel.

4. The record of the judgment of a circuit court is not rendered inadmissible in evidence, when offered as an estoppel in another action between the same parties, by the fact that when offered in evidence, a writ of error therefrom with supersedeas was pending in the supreme court.

5. A judgment that defendant 'go hence' and 'recover his costs,' entered upon a verdict for defendant at the trial of the issues raised by plaintiff's affidavit in attachment and the defendant's traverse affidavit, will not be construed as dismissing the main suit, but only as disposing of the attachment.

6. The supreme court has no power to reverse a judgment rendered by a circuit court in a case wherein a former judgment between the same parties was properly introduced in evidence, and properly held by that court to conclude the party against whom it was introduced, in consequence whereof the second judgment was rendered against him, upon the ground that such former judgment was afterwards reversed by the supreme court where that fact does not appear in the transcript upon the writ of error from such second judgment; but the party is not without his remedy by appropriate proceedings in a court of original jurisdiction, and the supreme court, upon affirming the judgment, will do so with leave to the plaintiff in error to pursue any legal or equitable remedy he may have for relief against it upon the ground stated.

COUNSEL R. H. Liggett, for plaintiff in error.

M. C. Jordan and A. W. Cockrell & Son, for defendant in error.

OPINION

CARTER J.

It appears from the transcript of the record that on July 31, 1896, plaintiff in error, in an action commenced by him July 25, 1896, in the circuit court of Duval county, against the defendant in error, moved for leave to file his amended affidavit in attachment, which alleged that defendant, on the 25th day of July, 1896, was indebted to him in a sum therein stated, which would become due August 1, 1896; that the defendant, on said 25th day of July, 1896, 'was fraudulently disposing of his property for the purpose of avoiding the payment of his just debts and demands, and was fraudulently secreting his property for the purpose of avoiding the payment of his just debts and demands.'

The court permitted the amended affidavit to be filed August 4, 1896, and on the same day the defendant filed his traverse affidavit, alleging: First, 'that he was not, on the 25th day of July, A. D. 1896, fraudulently disposing of his property for the purpose of avoiding payment of his just debts and demands'; and, second, 'that he was not on said day fraudulently secreting his property for the purpose of avoiding the payment of his just debts and demands.'

On August 12, 1896, the issue presented by the amended affidavit in attachment and the traverse affidavit of defendant was submitted to a jury, who rendered their verdict for the defendant, upon which the court entered judgment 'that the defendant, Joseph Damato, go hence without day, and recover of and from Henry W. Reese his costs in this behalf expended herein, taxed at $32, for which let execution issue.'

A motion for a new trial was made and overruled, to which ruling plaintiff excepted, and from the judgment entered he sued out this writ of error.

At the trial, after the plaintiff had produced his testimony, the defendant introduced the record of the judgment in another attachment proceeding in the same court between the same parties, from which it appears: That plaintiff's amended affidavit for attachment in that proceeding alleged that defendant, on July 25, 1896, was indebted to plaintiff in a sum therein stated to have been actually due, and that plaintiff, 'on the said 25th day of July, 1896, had reason to believe that the said Joseph Damato would fraudulently part with his property before judgment could be obtained against him, and that the said Joseph Damato was, on the 25th day of July, 1896, fraudulently disposing of his property, and that he was, on said 25th day of July, 1896, secreting his property.' That defendant filed his traverse affidavit in that proceeding on August 4, 1896, alleging: First, 'that on the 25th day of July, A. D. 1896, he did not intend to fraudulently part with his property before judgment could be obtained against him, nor did he contemplate fraudulently parting with his property before judgment could be obtained against him'; second, 'that he was not, on the said 25th day of July, A. D. 1896, fraudulently disposing of his property'; and, third, 'that he was not, on the said 25th day of July, 1896, secreting his property.' That the issue formed by this traverse affidavit and the plaintiff's amended attachment affidavit was submitted to a jury, who rendered their verdict for the defendant, upon which the court entered judgment 'that the attachment be, and it is hereby, dissolvedm that the defendant, Joseph Damato, go hence without day, and recover of and from Henry W. Reese his costs in this behalf expended, herein taxed at $-----, for which let execution issue.' Plaintiff then produced evidence showing that on August 11, 1896, he sued out a writ of error to review said judgment from this court, obtained an order from the circuit judge that it operate as a supersedeas, and gave the bond required by that order, and thereupon objected to the introduction of the record of the judgment in evidence; but his objections were overruled, and an exception taken, upon which error is assigned.

The court instructed the jury as follows: 'The issues in this case are substantially the issues involved in attachment number one between same parties, the record of which has been read in evidence before you. The court charges you upon the effect of the record, and that the issues therein raised and decided against the plaintiff in this attachent prevent your finding a verdict for him in this case. Your verdict, therefore, will be for the defendant.' This instruction was duly excepted to, and is assigned as error.

I. The defendant insists that the writ of error in this case should be dismissed, for the reason that the transcript fails to show that the circuit court had jurisdiction of the proceeding by attachment. He contends that this court must presume that the circuit court had no jurisdiction, because the transcript fails to exhibit the original affidavit for attachment, or to show the issuance of a writ of attachment or the levy thereof, and because the amended affidavit of plaintiff was made before a notary in Kentucky and because an amended affidavit made by J. F. Glen was not made before the clerk of the circuit court of Duval county, and because the attachment bond is signed by only one surety, viz., the Fidelity & Deposit Company of Maryland, and because the transcript does not exhibit an overruled motion to dismiss the attachment filed by him, presumably based upon alleged defects in the affidavit and bond. Though served with a copy of plaintiff's written directions to the clerk for making up the transcript, the defendant gave no additional directions. The record shows that he appeared and filed his traverse affidavit in the attachment proceeding, and secured a verdict and judgment in his favor. He has not sued out a writ of error from the judgment; nor is he entitled, upon plaintiff's writ of error, to assign or have this court consider alleged errors in the proceeding committed against him. His appearance and traverse affidavit gave the court jurisdiction over his person, and it cannot be doubted that there is sufficient in the transcript to show that the circuit court had jurisdiction of the attachment proceeding, as well as the person of defendant. Similar objections to the maintenance of the...