Robinson v. Farmers' & Merchants' Bank of Tullahoma, Tenn.

• Decision Date: 15 May 1928
• Citation: 95 Fla. 940,117 So. 393
• Court: Florida Supreme Court
• Parties: ROBINSON et al. v. FARMERS' & MERCHANTS' BANK OF TULLAHOMA, TENN.

117 So. 393

95 Fla. 940

ROBINSON et al. v. FARMERS' & MERCHANTS' BANK OF TULLAHOMA, TENN.

Florida Supreme Court

May 15, 1928

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action by the Farmers' & Merchants' Bank of Tullahoma Tenn., against R. E. Robinson and others. Judgment for plaintiff, and defendants bring error.

Affirmed.

Syllabus by the Court

SYLLABUS

Courts can vacate judgments and allow proper amendments at any time during term; trial court had authority to amend judgment during term by striking party defendant therefrom. Courts have absolute authority and control over their own judgments orders, and decrees, and can vacate same and allow proper amendments at any time during the term at which they are made.

COUNSEL

B. G. Adcock and D. L. Southard, both of West Palm Beach, for plaintiffs in error.

Bacon & Bussey, of West Palm Beach, for defendant in error.

OPINION

JOHNSON Circuit Judge.

The defendant in error sued the plaintiffs in error, as joint makers, on two promissory notes, and joined as a party defendant one D. W. King, who was an indorser of the said two notes in due course. Robinson, Southard, Fancher, and Waltson, the four named plaintiffs in error, were the makers of the two notes sued on. The two notes were dated November 15, 1925, and recited, 'On or before one year after date we promise to pay;' thus making each of the two notes sued on a joint undertaking on the part of the four makers. All of the defendants named were served with process. The defendant D. W. King, indorser, did not appear nor interpose any defense. One of the notes sued on was made payable to one R. E. Robinson, Jr., and the other note was made payable to one Ed Schell. It appears that the payees of the two notes indorsed them in blank to the defendant D. W. King, and then King indorsed both notes in blank to the defendant in error.

The four plaintiffs in error filed demurrers to the declaration, raising, among other questions, the question of making indorser King a party defendant in a suit against the joint makers of the notes. The demurrers were overruled.

The plaintiffs in error then interposed five pleas to each count of the declaration. The declaration contained two counts, one on each note. On motion three of the five pleas were properly struck. A plea of payment and a plea of deed of release were allowed to stand to each count.

The cause came on for trial before the judge, a jury being waived. At the trial the plaintiff offered in evidence, without objection from the defendant, the notes sued on, and produced testimony as to a reasonable attorney's fee. The defendants offered no testimony in support of their pleas. The trial was had on July 13, 1927. On the same date judgment was entered against the plaintiffs in error, including D. W. King, as indorser of the notes.

On July 14th the plaintiffs in error filed motion in arrest of judgment, on the ground that a valid judgment could not be entered against the joint makers and the indorser of the notes in due course.

On August 4, 1927, the defendant in error served on the plaintiffs in error a copy of the motion, which recites:

'Now, at, and during and before final adjournment of the regular June term, 1927, of the above-styled court, and while the judgment entered in the above-stated case is within the breast of the court, and subject to the power of the court to change or amend the same, comes the plaintiff, Farmers' & Merchants' Bank of Tullahoma, Tennessee, a corporation under the laws of Tennessee, by its attorneys, Bacon & Bussey, and moves the court to strike D. W. King, as indorser, as a party defendant in said case, and in the final judgment entered in said case, for the following reasons, to wit:

'First.

'Said D. W. King did not indorse the notes sued upon in said case at and before the negotiation of the same, and no proof was introduced upon the trial of said case showing that he became the indorser of said notes at and before the same were delivered or negotiated. Wherefore the order of the court hereon is prayed striking said D. W. King as a party defendant in said case from the judgment entered therein.'

On August 5th the court granted the above motion and entered an order striking D. W. King, indorser, as a party defendant in the case and from the judgment.

On August 5th the court entered an order overruling defendants' motion in arrest of judgment. The order overruling the motion in arrest of judgment recites:

'The foregoing cause coming on this day to be heard upon motion in arrest of judgment filed by the defendant makers of the notes sued on, and the same having been argued by counsel for the respective parties and duly considered by the court, it is ordered that said motion in arrest of judgment (the court first having allowed the motion of plaintiff to strike the defendant D. W. King, as indorser, as a party defendant in said case and in said judgment) be, and the same is hereby, denied.'

From this record of the final judgment the defendants in the court below, plaintiffs in error, sued out writ of error to this court.

D. W. King is joined as plaintiff in error.

The plaintiffs in error make 18 assignments of error. In their brief they do not specifically argue or present either one of the assignments made.

This court, in a number of cases, has held: 'Assignments of error must be argued in the briefs.' Beville v. State, 61 Fla. 8, 55 So. 854; Cannon v. State, 62 Fla. 20, 57 So. 240; S. A. L. R. Co. v. Nims, 61 Fla. 420, 54 So. 779; Mitchell v. Mason, 61 Fla. 692, 55 So. 387; Smith v. State, 65 Fla. 56, 61 So. 120.

This court has held that 'assignments of error not noticed in the brief will be treated as abandoned.' Southern Express Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107; Jordan v. Sayre, 24 Fla. 1, 3 So. 329; Williams v. State, 25 Fla. 734, 6 So. 831, 6 L. R. A. 821; and other cases. Where errors are assigned and neither briefed nor argued, the judgment will be affirmed. Clarke v. Southern Express Co., 33 Fla. 617, 15 So. 252; Bloodworth v. Lippincott, 78 Fla. 261, 82 So. 827.

The plaintiffs in error, in their brief, undertake to raise two questions. The first question is raised and argued in the following language (quoted exactly):

'A judgment was entered against these defendants for the amount claimed. Thereafter a Motion in Arrest of Judgment, setting up the fact of the misjoinder of parties was filed, which was overruled by the Court, and final judgment entered contrary to law.

'Citing:

' Webster v. Barnett, 17 Fla. 272.

'See also Revised Gen. Stat. 1920, Paragraph 4733.

' Also Prosser et al. v. Orlando Bank & Trust Co., 111 So. 516.

'The Court several days later entertained and granted a motion striking D. W. King, one of the indorsers, from the judgment as rendered by the Court, and entered up a judgment against R. E. Robinson, D. L....