Tilton v. Horton
| Citation | 139 So. 142,103 Fla. 497 |
| Parties | TILTON v. HORTON. |
| Decision Date | 13 January 1932 |
| Court | United States State Supreme Court of Florida |
Commissioners' Decision.
Error to Circuit Court, Broward County; George W. Tedder, Judge.
On motion for rehearing.
Denied.
For former opinion, see 137 So. 801.
COUNSEL Redfearn & Ferrell, W. H. Burwell, and J. A Dewberry, all of Miami, for plaintiff in error.
McCune Hiaasen & Fleming, of Foot Lauderdale, for defendant in error.
The only question passed upon in our former decision, 137 So 801, 804 (rendered November 13, 1931) in this cause was whether or not the trial court committed error in overruling a demurrer of plaintiff to defendant's plea of res judicata.
In the first of the opinion, we stated that 'if the trial court committed reversible error in his judgment on the demurrer it would become unnecessary to consider the cross-assignments filed by defendant in error' or as to 'whether or not a cross-writ of error by a defendant lies to a final judgment at law in his favor.' It will be noted that the motion for rehearing in quoting from our former opinion, as a basis for said motion, used the word 'necessary' instead of unnecessary as it appears in the opinion.
This court has recently held that 'cross-assignments of error by a defendant in error in a common-law case are not authorized by any statute or rule of court in this jurisdiction' and 'consequently, such cross-assignments of error cannot be considered.' Zigler v. Erler Corporation (Fla.) 136 So. 718; Wilder v. Punta Gorda State Bank, 100 Fla. 517, 129 So. 865. It was also said in the first cited case that 'there is nothing in our practice which precludes the defendants in error in a common-law case from himself suing out a writ of error to the same judgment or appealable order as that from which his adversary has taken a writ of error, thereby enabling the defendant in error, by means of his cross writ of error and assignments of error based thereon, to obtain the same relief as appellees in chancery are able to obtain by means of cross-assignments of error without a cross-appeal;' also held that 'a party may bring a writ of error to reverse his own judgment for error.' The rule is also stated in 3 C.J. 352, § 106, that 'At common law, however, where one party sues out a writ of error this does not prevent defendant in error from also suing out such a writ to review errors complained of by him.'
It is observed that the defendant's praecipe for cross-writ of error states that it is sued out from the final judgment in this cause, and that 'no assignment of error is assigned by defendant as to said final judgment,' and that 'all assignments of error by the defendant are addressed to adverse interlocutory orders rendered on April 22, 1929,' and 'on May 2, 1929.'
It appears therefore that defendant in error was entitled to have his assignments of error adjudicated on this appeal. While the case of Zigler v. Erler Corporation, supra, was not before the writer of the former opinion when it was being prepared, we have no hesitancy in conceding that a cross-writ of error was applicable for a review of his adverse ruling on demurrer; in fact, the result of the proceeding is equivalent to suing out a separate writ of error by the defendant Horton, which may for convenience be included in the same transcript as that of plaintiff in error.
We will now consider the question raised by the cross-assignments...
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Whitney v. State, 65-401
...have been raised in a prior proceeding. See: Hay v. Salisbury, 92 Fla. 446, 109 So. 617; Tilton v. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142; 19 Fla.Jur., Judgments and Decrees, § 120. However, res adjudicata in a Criminal Procedure Rule No. 1 matter should be applicable only to those ......
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United States v. Cohen
...of this doctrine. Armstrong v. Manatee County, 49 Fla. 273, 37 So. 938 (Fla. 1905); Tilton v. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142 (Fla.1931); Universal Construction Co. v. City of Ft. Lauderdale, 68 So.2d 366 As Fontainebleau itself admitted and even argued as a basis for denial ......
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Reed v. State
... ... Tilton v. Horton, 103 Fla. 497, 137 So. 801 (1931); Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722 (1904); Hunt v. Jacksonville, 34 Fla. 504, 16 ... ...
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Donahue v. Davis
...matter thereof arises out of the same transaction which is the subject matter of the suit. Tilton v. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142. The subject matters of the suits which we are considering were with reference to two entirely different transactions and neither was germane t......