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
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