Whitaker v. Wright

• Decision Date: 26 July 1930
• Citation: 129 So. 889,100 Fla. 282
• Parties: WHITAKER v. WRIGHT.
• Court: Florida Supreme Court

129 So. 889

100 Fla. 282

WHITAKER v. WRIGHT.

Florida Supreme Court

July 26, 1930

Commissioners' Decision.

Error to Circuit Court, Pinellas County; O. L. Dayton, Judge.

Action by Bertha J. Wright, a free dealer, against O. J. Whitaker. Judgment for plaintiff, and defendant brings error.

Affirmed.

Syllabus by the Court.

SYLLABUS

Pleas in abatement are classed as dilatory pleas and will not be aided in construction by any intendments, and at the trial may not be amended in matters of substance or of form.

With a plea in abatement, correctness of form is matter of substance, and, where such plea does not conform to the established rules, a plaintiff is not compelled to demur to it, but may treat it as a nullity and have it stricken on motion.

Motions averring mere matters of conclusion or of opinion, though supported by oath, cannot be received as evidentiary proof of such matters, but may be so received when founded upon facts supported by oath or other proper proof.

Jurisdiction of the parties is not lost by the mere entry of a nonsuit without a final judgment rendered and entered thereon.

Writs of error do not lie to orders of nonsuit in the absence of a final judgment dismissing the cause, or that defendant go hence without a day, or that plaintiff take nothing by his action, or other equivalent judgment, adjudicating that the suit is ended.

After a plaintiff has suffered a nonsuit or dismissed his cause, the parties are out of court for all purposes other than to carry the order into effect or to vacate or modify the same.

At common law a court of record had absolute control of its own orders and judgments and could vacate or amend them from time to time during the term at which they were rendered.

Interlocutory orders and judgments are always under the control of the court, and may be modified at any time before final judgment.

A motion to set aside a nonsuit and reinstate an action at law is in the nature of a motion for reconsideration, and is addressed to, and rests in, the sound discretion of the court by whom the nonsuit was granted, and such discretion will not be controlled unless manifestly abused.

Generally after a party is once in court through legal process or by appearance he is in legal contemplation in court until final disposition of the cause.

Where no final disposition has been made of an action at law, the court still has jurisdiction over the defendant in such suit though a new suit has been filed based upon the same cause of action.

COUNSEL

Anderson & Lewis, of St. Petersburg, for plaintiff in error.

W. G Ramseur, of St. Petersburg, for defendant in error.

OPINION

ANDREWS C.

A declaration containing two common counts and one special count and designated as case No. 5429 L was filed May 26 1928, in the circuit court of Pinellas county by defendant in error, hereinafter referred to as plaintiff.

On July 2, 1928, plea in abatement alleging a prior suit pending between the same parties upon the same cause of action and statutory pleas of never was indebted and never promised as alleged were filed by plaintiff in error, hereinafter called defendant, which latter pleas were filed to each count without waiving the plea in abatement. A joinder of issue was filed by plaintiff to the last-named pleas, and by agreement the issue raised by the plea in abatement was tried first. The record shows that on February 12, 1929, after taking testimony and before the jury retired, the plaintiff was permitted to enter a nonsuit, but the record proper does not show for what reasons the order of nonsuit was requested, and there is no bill of exceptions.

On March 26, 1929, plaintiff filed a petition to vacate and set aside the order of nonsuit and reinstate the case upon the docket. The petition was verified by oath of plaintiff and stated as a fact (as distinguished from conclusions) that the prior suit 5379 set up in the plea of abatement had been terminated on July 7, 1928, several months prior to the trial of the plea in abatement. Said petition further alleges that defendant was allowed to amend his plea in abatement during the trial and was granted a motion for a directed verdict, and thereupon before the jury retired plaintiff took the nonsuit. The better rule would seem to support the view that pleas in abatement may not be amended at the trial in matters of substance, nor even in matters of form. 31 Cyc. 424. They are classed as 'dilatory pleas' and are not favored and 'will not be aided in construction by any intendments.' Horter v. Commercial Bank & Tr. Co. (Fla.) 126 So. 909, 912, and cases there cited. With pleas in abatement 'correctness of form is matter of substance, and any defect of form is fatal,' and, where a plea in abatement 'does not conform to the rules established as to them [such pleas], the plaintiff is not compelled to demur to it, but may treat it as a nullity and have it stricken on motion.' McLeod v. Citizens' Bank, 61 Fla. 350, 56 So. 190, 194; Stewart v. Bennett, 1 Fla. 437; Strobhar v. State, 55 Fla. 167, 47 So. 4.

On April 16, 1929, the same attorneys who represented the defendant at the trial of the plea in abatement filed a special appearance for defendant with a motion to quash the petition to vacate and set aside the nonsuit entered on February 12, 1929. The first ground of this motion to quash alleges that on February 12, 1929, the said suit 'was finally disposed of by nonsuit entered upon the motion of the plaintiff,' and that the court in granting the nonsuit 'lost jurisdiction of defendant,' who at the time of filing said motion to quash was a nonresident of this state. A portion of the first ground of defendant's motion is based upon the 'record,' but the other grounds have no record basis, nor are they supported as to truth by oath of defendant or other proper proofs. Section 4408, Compiled General Laws of Florida 1927, provides that 'upon motions founded upon affidavits either party may offer affidavits in answer to affidavits of the opposing party.' A motion, whether supported by oath or not, which avers a mere matter of conclusion, could not be received as evidence of such matters so averred, and when it is grounded on facts that are neither apparent from the face of the record or papers on file in the case, nor within the judicial knowledge of the court, it must be supported by affidavits or other proof. Sewell v. Huffstetler, 83 Fla. 629, 93 So. 162; Turner v. State (Fla.) 126 So. 158. See especially Stewart v. Preston, 80 Fla. 473, 86 So. 348.

On April 16, 1929, the trial court entered an order setting aside and vacating the nonsuit entered on February 12, 1929, and reinstated said case No. 5429 L on the trial docket. On May 30, 1929, the case came on for trial upon the issues raised by plaintiff's joinder of issue on the defendant's pleas of never was indebted and never promised as alleged, and a verdict was returned in favor of the plaintiff in the amount of $2,750 upon which judgment was entered, and the defendant sued out a writ of error.

The final judgment recites that due notice of setting the case for trial was had, and that no one appeared on behalf of defendant.

The assignment of errors presented by defendant questions the trial court's jurisdiction of the person of defendant, and is based principally upon the order of the trial court setting aside the former order of nonsuit and reinstating the said cause upon the trial docket.

It is contended by the defendant that the entry of the nonsuit upon the motion of the plaintiff 'finally disposed of the case,' and that all parties 'went out of court,' and that the court thereby lost jurisdiction of the parties and the case.

This is the third appearance of this case in this court. See Whitaker v. Wright (Fla.) 123 So. 857; and Whitaker v. Wright (Fla.) 127 So. 306. Its first appearance here was upon a writ of error taken by defendant to the order reinstating the suit on the docket, and it was held that a writ of error did not lie to an order vacating and setting aside an order of nonsuit and reinstating the...