State Ex Rel. Briggs v. Barns

• Decision Date: 03 December 1935
• Citation: 164 So. 539,121 Fla. 857
• Parties: STATE ex rel. BRIGGS v. BARNS, Judge, et al.
• Court: Florida Supreme Court

164 So. 539

121 Fla. 857

STATE ex rel. BRIGGS v. BARNS, Judge, et al.

Florida Supreme Court

December 3, 1935

En Banc.

Proceedings by the State, on the relation of Charles L. Briggs, for writ of prohibition, opposed by the Honorable Paul D. Barns, as Judge of the Circuit Court of the Eleventh Judicial Circuit for Dade County, and another. On demurrer to suggestion for writ, on answer, and on motion to strike certain parts of the answer.

Returns held sufficient, and rule nisi discharged.

COUNSEL

Shutts & Bowen, L. S. Julian, and H. N. Boureau, all of Miami, for relator.

Hudson & Cason, of Miami, for respondents.

Evans Mershon & Sawyer and W. O. Mehrtens, all of Miami, amici curiae.

OPINION

BUFORD Justice.

This case is before us on demurrer to suggestion for writ of prohibition and answer to the suggestion for writ of prohibition filed after rule nisi was issued herein; also motion to strike certain parts of the answer or return.

To place the issues now before the court before the bench and bar so that the judgment entered herein may be of service to both, it is necessary to quote largely from the pleadings.

The suggestion for writ of prohibition alleges:

'1. On March 2, 1935, Second National Bank of Boston, a corporation organized under the laws of the United States filed in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, its praecipe for summons ad respondendum to be directed to Chas. L. Briggs 'in an action at law on promissory note, damages $200,000.00,' and requesting that said summons be made returnable to the Rule Day in April, 1935 on the same day original writ of summons ad respondendum was duly issued by the Clerk of said Court, and delivered to the Sheriff of said County, directed as aforesaid.

'2. On March 25, 1935, before there had been any return of said original writ of summons by said Sheriff to said Clerk's office, and before the same had been filed in said Clerk's office, said Second National Bank of Boston filed therein its praecipe for an alias summons ad respondendum to be delivered to said Chas. L. Briggs 'in an action at law on promissory note, damages $200,000.00,' and requesting that the same be made returnable to the Rule Day in May, 1935; on the same day a purported alias writ of summons ad respondendum was duly issued by the Clerk of said Court and was delivered to the Sheriff of said County on the following day, to-wit: March 26, 1935, directed as aforesaid.

'3. On April 1, 1935, the return day of said original writ of summons, said Chas. L. Briggs filed in said cause his special appearance expressly for the sole and only purpose of contesting the jurisdiction of said Circuit Court over said Chas. L. Briggs; and on April 24, 1935, not less than ten (10) days before the next succeeding Rule Day; said Chas. L. Briggs appearing specially for the sole purpose thereof, filed in said cause his motion to quash the purported service of the original writ of summons on him and to set aside and quash said Sheriff's return thereon, containing a statement of the grounds of said special appearance and motion and bearing an acknowledgment of receipt of a copy of said motion on said date by the attorneys for said Second National Bank of Boston.

'4. On April 30, 1935, and not prior thereto, said Sheriff of said County returned said original writ of summons to, and filed the same in said Clerk's office with the following return endorsed on the back thereof:

"Received this Summons Ad Res. on the 2d day of Mar 35 and served the same on March 7, 1935, in Dade County, Florida, upon Chas. L. Briggs, the within named defendant, by delivering a true copy of this summons to Bernard S. Leslie, as Guardian of the said Chas. L. Briggs, under appointment of the County Judge's Court of Dade County, Florida, and by then and there showing to him this original and explaining to him the contents thereof; Copy & return .50 Service 1.00 2 miles .25 1.75

"D. C. Coleman, Sheriff

"Dade County, Florida By T. J. Harknes, D.S.'

'5. On May 6, 1935, the Return Day of said purported alias writ of summons, said Chas. L. Briggs, filed in said cause his special appearance expressly for the sole and only purpose of contesting the jurisdiction of said Circuit Court over said Chas. L. Briggs; and on May 21, 1935, not less than ten (10) days before the next succeeding Rule Day, said Chas. L. Briggs appearing specially for the sole purpose thereof, filed in said cause his motion to quash said purported alias writ of summons issued in said cause and directed to him, and to set aside and quash said Sheriff's return thereon, containing a statement of the grounds of said special appearance and motion, and bearing an acknowledgment of receipt of a copy of said motion on said date by the attorneys for said Second National Bank of Boston.

'6. On May 6, 1935, said Second National Bank of Boston filed in said cause its declaration and a copy of its alleged cause of action, setting forth that W. C. Briggs, Inc., a Florida corporation, on the 7th day of December, 1929, by its promissory note, overdue, promised to pay to said Second National Bank of Boston $100,000.00 three months after date; that said Chas. L. Briggs endorsed same before its execution and delivery, and that although said note was duly presented for payment and was dishonored, of which the said Chas. L. Briggs had due notice, he did not pay the same.

'7. On July 1, 1935, said motion to quash the purported service of said original writ of summons and the Sheriff's return thereon, and said motion to quash said purported alias writ of summons and said Sheriff's return thereon, came on to be heard before the Honorable Paul D. Barns, as Judge of said Court, and after argument by counsel for the respective parties, the said Honorable Paul D. Barns as Judge of said Court on the same day made and rendered an order in said cause denying said motion to quash said purported alias writ of summons and to set aside and quash the Sheriff's return thereon.

'8. On July 13, 1935, the said Honorable Paul D. Barns as Judge of said Court made and rendered an order referring to said order made July 1, 1935, and allowing said Chas. L. Briggs to and including the 5th day of August, 1935, within which time to file such pleas or demurrers to the declaration in said cause as he may be advised.'

And it further alleged that the circuit court of the Eleventh judicial circuit of Florida, in and for Dade county, and the Honorable Paul D. Barns, as judge, were without jurisdiction because of the facts alleged, hereinbefore set forth, but that the said Honorable Paul D. Barns, as judge of said circuit court, proposed to proceed to hear and determine the cause and to render such order and judgment as he might deem appropriate.

It further alleged as follows:

'On January 28, 1930, the Honorable Jeff N. B. Browne, as Circuit Judge of the Eleventh Judicial Circuit of Florida, in and for Dade Conty, acting for and in the absence of the County Judge of said County, made and entered a decree adjudicating said Chas. L. Briggs to be insane, and that said decree has been continuously since said date, and still is in full force and effect. A certified copy of said decree accompanies this Suggestion and is attached hereto, marked Exhibit 'B' and is hereby made a part hereof.'

The prayer was for writ of prohibition to restrain the circuit court from proceeding further in the cause.

The exhibits attached to the suggestion support the allegation as to the issuance of summons ad res., alias summons ad res. and the returns.

Rule nisi was issued. It is not necessary to quote the demurrer.

The return of Judge Barns contains the following:

'1. This Respondent admits the allegations of Paragraphs 1 to 10 inclusive.'

'3. This respondent says that the service of the original summons was defective and irregular to the extent of not being...