Royal Phosphate Co. v. Van Ness

• Decision Date: 16 April 1907
• Parties: ROYAL PHOSPHATE CO. et al. v. VAN NESS et al.
• Court: Florida Supreme Court

43 So. 916

53 Fla. 135

ROYAL PHOSPHATE CO. et al. v. VAN NESS et al.

Florida Supreme Court, Division A.

April 16, 1907

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

Action by Martin V. B. Van Ness and Annie L. Van Ness against the Royal Phosphate Company and the United States Fidelity &amp Guaranty Company. Judgment for plaintiffs. Defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

The cause of action required to be filed with the declaration is to apprise the defendant of the nature and extent of the demand against him, in order that he may plead with greater certainty, and ordinarily constitutes no part of the declaration. Even if the cause of action or bill of particulars filed with the declaration can be made a part thereof by apt words in the declaration, where this has not been done, and both parties have not so treated it, neither the trial court nor the appellate court is warranted or authorized in treating such cause of action or bill of particulars as a part of the declaration.

The statute and rule which require the cause of action or bill of particulars to be filed with the declaration do not make such cause of action or bill of particulars a part of the declaration, and such cause of action or bill of particulars filed with the declaration cannot be resorted to or used on demurrer to supply essential allegations of fact omitted from the declaration.

A declaration in an action at law should allege distinctly every fact that is essential to the plaintiff's right of action.

On an assignment of error based upon the overruling of a demurrer to the declaration, the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, and no other grounds will be considered unless there is an omission in the declaration of allegations of substantive facts which are essential to a right of action, so that the declaration wholly fails to state a cause of action.

In an action of debt upon an injunction or indemnity bond, a declaration which fails to allege any cost, or damage, or expense incurred by the plaintiffs by reason of the improper suing out of the injunction, is so fatally defective as to show no cause of action against or liability upon the part of the defendants to the plaintiffs.

Where there is no sufficient declaration in a case, and a demurrer shall have been sustained thereto, the other questions in the record are not open for the consideration of the appellate court.

COUNSEL

W. W. Hampton, for plaintiffs in error.

OPINION

SHACKLEFORD C.J.

This is an action of debt on an injunction bond, instituted by the defendants in error against the plaintiffs in error in the circuit court for Citrus county, in which a trial was had by a jury, and which resulted in a verdict for the defendants in error, herein styled the 'plaintiffs,' in the sum of $652.30. A motion for a new trial was made by the plaintiffs in error, herein styled the 'defendants,' upon various grounds, the fourth of which was that 'said verdict is excessive.' Upon this motion the trial court made an order to the effect that the plaintffs remit the sum of $272.15, in default of which the motion would be granted upon the fourth ground. The plaintiffs entered a remittitur in accordance with the order of the court, and final judgment was entered against the defendants in the sum of $380.15 damages and $12.85 costs. This judgment the defendants seek to have reviewed hereby by writ of error returnable to the present term.

The declaration is somewhat lengthy, reciting the granting of a restraining order at the instance of the Royal Phosphate Company, one of the defendants, by the judge of the Fifth judicial circuit of Florida against the plaintiffs, restraining and enjoining plaintiffs from disposing of or assigning a certain judgment recovered by plaintiffs in the sum of $15,000 against the Silver Springs, Ocala & Gulf Railroad Company (see Silver Springs, Ocala & Gulf R. R. Co. v. Van Ness, 45 Fla. 559, 34 So. 884), the execution of an injunction bond in accordance with the order of the court by the Royal Phosphate Company as principal and the United States Fidelity & Guaranty Company as surety, in the sum of $1,000, payable to the plaintiffs, conditioned to pay plaintiffs 'all costs, damages, and expenses for improperly suing out such restraining order, in case the same shall be dissolved, or the appeal dismissed.'

That portion of the declaration which attempts to charge the defendants is as follows:

'Plaintiffs hereto attach a duly authenticated copy of the bond, executed and delivered as required by the order granting the issuance of the injunction, dated 23d of March, 1903, by said defendants; and plaintiffs aver that the conditions of said bond have been wholly broken, for that the writ of injunction set out and recited in said bond has been dissolved, and the bill from which the same issued has been dismissed, by proper decree of said court, whereby the penalty of said bond, to wit, the sum of $1,000.00, became and is forfeited in favor of and for the use and benefit of plaintiffs; and plaintiffs claim judgment against said defendants for the said sum of $1,000.00.

'And plaintiffs further aver that all and each of the conditions of said bond have been broken by defendants, for that said defendants, at the time of the dissolution of said injunction and the dismissal of said bill, wholly neglected and refused, and still neglect and refuse, to pay plaintiffs the costs, expenses, and damages sustained, incurred, and suffered by plaintiffs by reason of suing out said injunction as aforesaid, and which costs, expenses, and damages the defendants obligated themselves firmly by their said bond or writing obligatory to well and truly pay plaintiffs when said injunction should be dissolved or the bill dismissed. And plaintiffs hereto attach a bill of particulars showing the costs, expenses, and damages sustained by plaintiffs by reason of suing out the injunction aforesaid.'

The attached bill of particulars is as follows:

Bill of Particulars of Costs, Expenses and Damages. Loss of interest on judgment set out in bond	$ 448 77
Fees paid attorney	250 00
Traveling expenses, R. R. fare, hotel bills	360 00
	--------------
	$1,058 77

To this declaration the...