Tomasello v. Walton

Citation129 So. 840,100 Fla. 710
PartiesTOMASELLO v. WALTON.
Decision Date29 August 1930
CourtUnited States State Supreme Court of Florida

Error to Circuit Court, Okeechobee County; Elwyn Thomas, Judge.

Action by J. F. Walton against the Bank of Okeechobee, wherein P Tomasello, Jr., on insolvency of defendant bank, was substituted as defendant. Order denying defendant's motion to vacate order of dismissal previously entered including dismissal of set-off and counterclaim, and defendant brings error.

Affirmed.

ELLIS J., dissenting.

COUNSEL

G. P. Garrett, of Orlando, and Angus Sumner, of Ft. Pierce, for plaintiff in error.

Botts & Field, of Miami, for defendant in error.

OPINION

BUFORD J.

In this case Walton sued the Bank of Okeechobee on common counts, claiming damages in the sum of $50,000, and, as bill of particulars to his declaration, attached the following.

'To money paid to Bank of Okeechobee on subscription to stock in proposed Okeechobee Bank & Trust Co. $1,500.00.

'To interest on $1,500.00 from date of payment.'

To the declaration, the defendant filed two pleas, the first of which was, 'Never was indebted as alleged,' and the second was as follows:

'Said defendant is an insolvent Florida banking corporation, and prior to the appointment of a Receiver for such Bank as hereinafter stated was organized and existing as a banking corporation under the laws of the State of Florida, and, under said laws, conducted a banking business at Okeechobee, Florida. Prior to the institution of this suit viz. on to-wit the 30th day of June A. D. 1926, said defendant ceased to exist, by virtue of the fact that on to-wit said date the Comptroller of the State of Florida declared said Bank insolvent and appointed one P. Tomasello, Jr. as Receiver of said Bank, and said appointment was duly confirmed by the Circuit Court of the Twenty-first Judicial Circuit in Okeechobee County, Florida. Pursuant to said appointment and confirmation and prior to the institution of this suit said Receiver qualified as such Receiver and took charge of all the assets and affairs of said Bank, and said Bank has ever since the said appointment remained insolvent and is now insolvent, and said Receiver has ever since said qualification as Receiver, remained and still is the Receiver of said Bank in charge of all the assets and affairs of said Bank. And defendant says that by virtue of the appointment of said Receiver all of the obligations and liabilities of said Bank have become and are the obligations and liabilities of the Receiver aforesaid. And defendant says that by virtue of the appointment of said Receiver a suspension was created of the rights, privileges and franchises theretofore exercised by said Bank and said Bank ceased to exist, and was not at the time of the institution of this suit, and is not now a banking corporation of the State of Florida. All of which defendant is ready to verify. Wherefore, said defendant says that the plaintiff ought not to have or maintain his action against said defendant in this case brought, but should have and maintain its action solely against the Receiver of said Bank. And defendant prays the judgment of this Court whether this action ought further to be maintained against said defendant.'

The plaintiff filed demurrer to the second plea. The demurrer was overruled. Thereupon P. Tomasello, Jr., as receiver of the Bank of Okeechobee, was substituted as the defendant. Thereupon the receiver filed a plea setting up the fact that he had been appointed receiver of the bank; that the plaintiff was indebted to the receiver in the sum of $10,000 as 100 per cent. stock assessment on 100 shares of stock owned by the plaintiff of the par value of $100 per share; and, amongst other things, in his plea he alleges:

'Subsequent to the closing of said bank, viz, on the 1st day of June A. D. 1926, and prior to the institution of this suit, the Comptroller of the State of Florida levied a stock assessment against the stock of said banking corporation for the full amount of the stock of said banking corporation for the full amount of the stock held by each and every of the stockholders of said bank, in the par value thereof, in addition to the amount invested in said shares, and notified the plaintiff herein of the levy of such stock assessment, and required the said plaintiff to pay said stock assessment in cash to the said defendant Receiver forthwith. And the said plaintiff, prior to the institution of this suit, failed and refused to make said payment of said stock assessment so levied against him for the par value of said stock, and still fails and refuses to pay the same or any part thereof. Wherefore, the defendant Receiver as aforesaid, says that the said plaintiff is indebted to the said defendant Receiver as aforesaid in the sum of $10,000.00 on said stock assessment, which said amount the said defendant Receiver is willing to set off against the plaintiff's claim. And this the said Defendant Receiver is ready to verify.'

Plaintiff filed replication denying ownership of the shares of stock referred to in the plea, and denied the existence of any indebtedness from the plaintiff to the defendant. Thereafter plaintiff filed motion to dismiss the suit, upon which order was made on March 22, 1929, as follows:

'This cause coming on this day to be heard upon motion of plaintiff for an order dismissing said cause, and the plaintiff and defendant being represented by counsel, after argument of counsel the court being fully advised in the premises, it is

'Ordered and adjudged that said cause be, and the same is hereby dismissed at the cost of the plaintiff, and that the set off or counter claim heretofore filed by the defendant in said cause be, and the same is hereby dismissed.'

On August 29, 1929 defendant filed motion to vacate the order of dismissal, and, in support of such motion, filed an affidavit in which the following allegation appears:

'The above named J. F. Walton is a nonresident of the State of Florida, and a citizen of a state other than the State of Florida and there is no person in the State of Florida the service of summons upon whom would bind him. The claim set forth in my plea of setoff is valid claim on stock assessment, which said plaintiff resists. I have made diligent effort to see if I could get service on this plaintiff on the matter of this set-off in an independent suit to determine the same and have wholly failed. The said plaintiff evades service. The purpose of the plaintiff's motion to dismiss is to deprive the Courts of this state of jurisdiction of the stock assessment claim, embodied in my plea of set-off. Collection of the stock assessment from this plaintiff is important to the trust of which I am Receiver, in that even if the same is fully collected and distributed among the creditors of this bank, said creditors will only receive a small portion of their claims. The costs of court has not been paid by said plaintiff.'

The record shows that the costs were subsequently paid, but, before they were paid, an order was made by the court denying the motion to vacate the order of dismissal.

Writ of error was taken and assignments of error are as follows:

'Assignment of Error No. 1. Said court erred in entering up said final judgment of dismissal.

'Assignment of Error No. 2. Said court erred in dismissing the said cause.

'Assignment of Error No. 3. Said court erred in including in said final judgment of dismissal a final judgment of dismissal of the set-off or counter-claim filed by the defendant in said cause.

'Assignment of Error No. 4. Said court erred in dismissing said cause prior to payment of the costs of said cause by the plaintiff.'

We have deemed it expedient to set forth in detail the various steps taken in this case, that what appears to be a deficiency in our statutes may be brought to the attention of the bench and bar and may become a matter for legislative consideration.

In 9 R. C. L. p. 202, par. 18, the author says:

'The remedy of set-off or counterclaim was unknown at common law, and therefore, the question whether the plaintiff has a right to dismiss his action and take a non-suit after the defendant has interposed a counterclaim could not arise until that remedy was given by statute. Where the remedy is given, but the statute does not define the right of the plaintiff to dismiss his action after counterclaim has been pleaded, there is a conflict of authority as to the plaintiff's right to dismiss the action. while some jurisdictions hold that though the defendant has pleaded a set-off or counterclaim, the plaintiff may dismiss his action on motion made in due time, the great weight of authority seems to support the rule that where a defendant has interposed a counterclaim and asked for affirmative relief, the plaintiff can not prejudice the defendant in any way by taking a non-suit, or by dismissing his action, nor can he in any way prevent the defendant from proceeding to judgment upon his counterclaim. But the plaintiff may discontinue only as to his own claim or demand. A distinction has been made between a counterclaim arising out of the transaction set forth in the complaint and one arising independently of the cause of action alleged in the complaint, it being held that where the first kind of counterclaim is set up, the plaintiff can not voluntarily submit to a nonsuit, as it is proper that the rights of the parties arising out of the same transaction should be settled at the same time, but that as to the second kind, the plaintiff may submit to a voluntary non-suit as to his own cause of action, but cannot by so doing, put an end to the defendant's right to litigate his own counterclaim.'

In Huffstutler v. Louisville Packing Co., 154 Ala. 291 45...

To continue reading

Request your trial
3 cases
  • Dobson v. Crews, E-202
    • United States
    • Florida District Court of Appeals
    • April 7, 1964
    ...supra; Goldring v. Reid et al., 60 Fla. 78, 53 So. 503; Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540; Tomasello v. Walton, 100 Fla. 710, 129 So. 840; State ex rel. L & L Freight Lines v. Barrs, 129 Fla. 668, 176 So. 756.) Some of the cases decided by that court involved vo......
  • Johns v. Puca
    • United States
    • Florida District Court of Appeals
    • July 20, 1962
    ...that the plea would fall with the main action. The question was again presented to the Court in the case of Tomasello v. Walton, reported in 100 Fla. 710, 129 So. 840. Therein a majority of the Court reiterated that the plaintiff's right to non-suit could not be abridged by the existence of......
  • Bowers v. Dr. P. Phillips Co.
    • United States
    • Florida Supreme Court
    • August 29, 1930

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT