Sendoya v. Chattanooga Brewing Co.

• Decision Date: 14 March 1917
• Citation: 73 Fla. 648,74 So. 801
• Parties: SENDOYA v. CHATTANOOGA BREWING CO.
• Court: Florida Supreme Court

74 So. 801

73 Fla. 648

SENDOYA v. CHATTANOOGA BREWING CO.

Florida Supreme Court

March 14, 1917

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Scire facias by the Chattanooga Brewing Company against C. A Sendoya. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The plea of accord and satisfaction, to be effective, must be supported by a new contract, expressed or implied, between the same parties to the original agreement, and the last contract must be executed to have the effect of satisfaction.

Where a payment is made on a judgment, and it is not shown to have been made in accord and satisfaction of the judgment, but there is evidence that a payment merely was made on the judgment, a directed verdict for the plaintiff on an issue of accord and satisfaction made by the defendant is proper.

The transfer by law of a county from one judicial circuit to another does not affect the validity of judgments obtained in the county or proceedings thereon.

COUNSEL J. T. Watson, Jr., of Tampa, for plaintiff in error.

E. B Drumright, of Tampa, for defendant in error.

OPINION

WHITFIELD, J.

The following writ of scire facias was issued:

'Chattanooga Brewing Co., a Corp., v. Serafin Montiel and C. A. Sendoya Copartners Doing Business as Montiel & Sendoya.

'In the name of the state of Florida:

'To the Sheriff of Hillsborough County--Greetings:

'Whereas, the Chattanooga Brewing Company, a corporation, heretofore in our circuit court for the said county of Hillsborough, on the 23d day of June, 1909, by the consideration and judgment of the same court recovered against Serafin Montiel and C. A. Sendoya in a certain action of assumpsit, suit on note, the sum of $943.42, and also the cost of said plaintiff in that behalf, and taxed the sum of $5.58 whereof the said Serafin Montiel and C. A. Sendoya, copartners as Montiel & Sendoya, were convicted, as appears to us of record, and now on behalf of the said Chattanooga Brewing Company we have been informed that, although judgment was given as aforesaid, yet execution for the damages and costs aforesaid still remains to be made to it, the said plaintiff, whereof the said Chattanooga Brewing Company has sought to provide a proper remedy in this behalf. We do therefore command you, as you have many times heretofore been commanded, that you make known to the said Serafin Montiel and C. A. Sendoya that they be before our said circuit court for Hillsborough county, at the courthouse in Tampa, Fla., in the county aforesaid, on the first Monday in March next, to show cause, if any they have, why the said Chattanooga Brewing Company ought not to have execution against them for the damages and costs aforesaid according to the form and effect of the said recovery. And have you there then this writ.

'Witness W. P. Culbreath, clerk of our circuit court, and the seal thereof at Tampa, Fla., aforesaid, this 10th day of February, 1916.

'W. P. Culbreath, Clerk Circuit Court,

'[Seal.] By Helen Irsch, D. C.

'Service accepted on behalf of C. Sendoya, Feb. 10, 1916.

'J. T. Watson, Jr., Attorney.'

A plea was filed as follows:

'And now comes the defendant C. A. Sendoya in the above-entitled cause, and for plea to the pluries writ of scire facias which has been issued therein says that after the issuance of the judgment described in said writ, and before the commencement of this revivor proceeding, the plaintiff, Chattanooga Brewing Company, in a certain stipulation and agreement between counsel representing several judgment creditors of the late firm of Montiel & Sendoya, through its attorney, one F. M. Simonton,...