Sewell v. Huffstetler

• Decision Date: 19 May 1922
• Citation: 83 Fla. 629,93 So. 162
• Parties: SEWELL et al. v. HUFFSTETLER.
• Court: Florida Supreme Court

93 So. 162

83 Fla. 629

SEWELL et al. v. HUFFSTETLER.

Florida Supreme Court

May 19, 1922

Rehearing Denied June 12, 1922.

Error to Circuit Court, Dade County; O. K. Reaves, Judge.

Action by W. I. Huffstetler against John Sewell and another. From a judgment for plaintiff, defendants bring error.

Affirmed.

See also, 87 So. 782.

Syllabus by the Court

SYLLABUS

If any one count of declaration is good, demurrer will not lie; in action on injunction bond for breach of condition, no defense that court overruled motion to dissolve but later dismissed bill on merits. Where a demurrer is addressed to a declaration in its entirety, which declaration contains several counts, if any one count is good the demurrer will be overruled. In an action upon an injunction bond for breach of the condition, which is that if the injunction be dissolved and the bill be dismissed, it is no defense that the court overruled a motion to dissolve the injunction but later upon the merits dismissed the bill and dissolved the injunction.

Cause pending before judge unable to attend may be transferred to judge of another circuit; hearing by judge of another circuit where cause taken because of sickness of sitting judge not change of venue. Under section 1481, General Statutes 1906 Florida, Compiled Laws 1914, if the judge of a circuit where a cause is pending becomes ill and unable to attend to any of the duties pertaining to his office, the issues in the cause may be made up and testimony taken and the cause disposed of under the orders of the judge of another circuit. A hearing by the judge of another circuit under this section is not a change of venue.

Cause pending before sick judge may be heard by judge of another circuit upon application of either party. Where, in a chancery cause, the judge of the circuit where the same is pending becomes ill and unable to attend to any of the duties pertaining to his office, the cause may be heard by the judge of another circuit upon application by either party.

Demurrer to declaration alleging judge of circuit where cause pending because sick admits conditions necessary to authorize judge of another circuit to hear and determine cause. Where, in an action upon an injunction bond for breach of condition, the declaration alleges that the judge of the circuit in which the chancery cause was pending became ill and was unable to attend to the duties of his office and the cause was heard by the judge of another circuit, a demurrer to the declaration admits the conditions necessary to authorize the judge of the other circuit to hear and determine the cause.

Disqualified judge in pending action should make only reference order judge disqualified in any cause in which interested, or party, or on ground disqualifying him as juror; disqualified judge should retire on own motion without waiting for application; judge professionally connected as attorney with pending cause deemed disqualified. A judge of a circuit who is disqualified in an action pending in his circuit and certifies to his own disqualification should make no further order in the cause other than the one of transfer, but an order to the effect that the cause be referred to some other judge having jurisdiction is proper. Section 1337, General Statutes 1906, prohibits any judge from presiding in any cause in which he is interested or to which he is a party or in which he would be excluded from being a juror by reason of interest, consanguinity, or affinity to either of the parties. Section 1339, General Statutes, provides that the judge so disqualified shall retire of his own motion and without waiting for an application to that effect. A judge who was an attorney before his election to the bench and was professionally connected with the case pending in the circuit of which he is judge is deemed to be disqualified.

Parties not required to agree on judge where trial judge disqualified; transfer of cause for disqualification of judge not required to particular circuit. Section 1481, General Statutes 1906, requires any other judge of a court of the same jurisdiction as the court in which the case is pending on the application of either party to perform such duties and hear and determine all such matters as may be submitted to him. Nothing in the statute requires the parties to agree upon a judge to try the cause, nor that it shall be transferred to the circuit next adjoining nor to any other circuit.

No defense to action on injunction bond that condition is broader than terms of order for injunction required. It is no defense to an action upon an injunction bond that its condition is broader than the terms of the order for the injunction require.

Plea setting up contract different from recitals of bond bad liability of obligors determined by bond and not by court order. A plea which sets up a contract different from the recitals of the bond is bad. The liability of the obligors is determined by the bond and not by the court order.

Indemnity for breach of bond allowed so far as condition legal; dissolution of injunction on merits an adjudication that it was improperly issued. Indemnity for the breach of the bond will be allowed so far as the condition is legal, but not beyond what could be recovered if the bond conformed to the order. Dissolution of the injunction upon the merits operates as an adjudication that it was improperly issued.

Where declaration alleges dissolution of bond, plea that injunction not dissolved upon motion bad; plea should be distinctively responsive; where plea has two intendments on face, one most unfavorable to pleader taken. In an action upon a bond for a breach of its condition where the declaration alleges that the injunction was dissolved and the bill dismissed, which language followed the condition of the bond, a plea which averred that the injunction was not dissolved upon motion is bad. The plea should meet the allegation of the declaration squarely. The plea should be distinctively responsive, not evasive and argumentative. If the plea has two intendments upon its face, that which is most unfavorable to the party pleading will be taken.

Plea to jurisdiction failing to aver any facts showing lack of jurisdiction held bad. In an action upon an injunction bond for breach of condition, where the declaration alleges that the judge of the court in which the chancery cause was pending was ill and unable to perform the duties of his office and the cause was heard and determined by the judge of another circuit, a plea which avers that the judge who dismissed the chancery action was without jurisdiction to make any order in the cause is bad because it fails to aver any fact showing the lack of jurisdiction of such judge.

Plea in action on bond going only to reduction of damages not in bar; fact that damages claimed in excess of liability on bond immaterial. A plea to an action upon an injunction bond for breach of condition, which merely avers certain items of expense and charges to which the plaintiff alleges that he was subjected by the issuing of the injunction, is not a plea in bar. Such plea goes only to the reduction of damages. That damages are claimed in excess of the liability on the bond sued upon is immaterial.

Pleas averring excessive damages not in bar; excessive damages may be shown in evidence under general issue. Pleas to an action upon an injunction bond for breach of condition which aver that the items claimed by way of damages are excessive are not pleas in bar, and such averments of fact may be shown in evidence under the general issue in reduction of damages.

Plea amounting merely to averment of conclusion of law bad. A plea which amounts merely to an averment of a conclusion of law is bad.

Plea that judge dissolved injunction without authority must set out circumstances under which order of dissolution made. A plea to an action upon an injunction bond for breach of condition, which undertakes to set up a defense that the judge of the court who made the order dissolving the injunction was without authority to make such order, is bad. The plea should have averred the facts or circumstances under which the judge made the order of dissolution, so that it might appear upon the face of the plea why the court was without jurisdiction.

Parties bound by written contract in action for breach of injunction bond; obligors estopped to deny recitals of bond. In an action to recover damages for the breach of condition of an injunction bond, the parties are bound by the terms of their written contract and will not be permitted to set up a different contract to the one which they signed and sealed as a defense. The obligors are estopped to deny recitals of the bond.

Defendant filing amended pleas to declaration after statutory period must obtain order of court. Where a defendant in a civil action desires to file amended pleas to the declaration after the time fixed by statute for the filing of pleas, an order of court should be obtained permitting him to amend as desired.

Made in cause not evidence of facts recited therein. Motions made in a cause are not evidence of the facts recited therein.

COUNSEL

G. A. Worley & Son, of Miami, for plaintiffs in error.

R. F. Burdine, of Miami, and W. J. Oven, of Tallahassee, for defendant in error.

OPINION

ELLIS J.

In August, 1914, W. I. Huffstetler brought this action against John Sewell and Frank Gallat upon a bond given by Mrs. Mary K. Worley and her husband, G. A. Worley, to W. I Huffstetler, in the sum of $1,000. The bond was executed in March, 1912, with Sewell and Gallat as sureties. The bond was given pursuant to the court's order in a cause wherein Mrs. Worley and her husband sued Huffstetler in chancery and sought an injunction...