Wilder v. Punta Gorda State Bank

• Citation: 100 Fla. 517,129 So. 865
• Parties: WILDER et al. v. PUNTA GORDA STATE BANK et al.
• Decision Date: 02 August 1930
• Court: United States State Supreme Court of Florida

129 So. 865

100 Fla. 517

WILDER et al. v. PUNTA GORDA STATE BANK et al.

Florida Supreme Court

August 2, 1930

Commissioners' Decision.

Suit by the Punta Gorda State Bank and another against W. E. Wilder and another. From the decree rendered, defendants appeal.

Reversed and remanded with directions. Appeal from Circuit Court, Hardee County; W. J. Barker, judge.

COUNSEL

W. D Bell, of Arcadia, for appellants.

Leitner & Leitner, of Arcadia, for appellees.

OPINION

DAVIS C.

This is the second time that we have been called upon to consider this case. A statement of facts will be found in a decision of this court when the case was here on a former appeal. See Punta Gorda State Bank v. Wilder, 93 Fla. 301, 112 So. 569, 571.

The appellants have assigned as error: (1) The entering of the final decree; (2) overruling demurrer of A. T. Gore to the bill of complaint; (3) overruling demurrer of W. E. Wilder to the bill of complaint; and (4) sustaining a motion to strike a part of the answer of A. T. Gore.

The last assignment of error has been abandoned by the appellants.

Special Equity Rule 4 (vol. 5, pages 4685, 4686, Compiled General Laws of Florida 1927) contains the following provision:

'If the appellee desires to have any ruling made against him reviewed upon such appeal, he shall within the time prescribed by these rules for filing his additional directions, file a complete assignment of all the errors he intends to rely upon in the Appellate Court. * * * If the appellee fails to file and serve cross-assignments of errors as herein provided, the parties will be confined on the hearing to the consideration of the assignments of error filed by appellant.'

When this case was here before, it was upon an appeal from a decree dismissing the bill of complaint after a hearing upon the merits. Appellees, including W. E. Wilder and A. T. Gore (the present appellants), did not at that time assign as error the ruling of the lower court overruling the demurrers of W. E. Wilder and A. T. Gore, as they had a right to do under the rule that we have referred to.

It is settled here that all points adjudicated by an appellate court upon a writ of error or upon an appeal become the law of the case and are no longer open to discussion or consideration. Florida East Coast R. Co. v. Geiger, 66 Fla. 582, 64 So. 238; Christopher v. Mungen, 66 Fla. 467, 63 So. 923; First Nat. Bank v. Ulmer, 66 Fla. 68, 63 So. 145; A. R. Harper Piano Co. v. Seaboard Air Line Ry., 65 Fla. 490, 62 So. 482; McKinnon v. Johnson, 57 Fla. 120, 48 So. 910; Sanders v. State, 82 Fla. 498, 90 So. 455. But we have also held that this principle has no applicability to, and is not decisive of, points presented upon a second writ of error that were not presented upon the former writ of error and consequently were not before the appellate court for adjudication. Florida East Coast R. Co. v. Geiger, supra; Hillsborough Grocery Co. v. Leman, 62 Fla. 208, 56 So. 684; Ross v. Savage, 66 Fla. 106, text 124, 63 So. 148; Paul v. Commercial Bank, 69 Fla. 62, 68 So. 68.

It is in effect contended by appellants that the reversal of this cause upon the former appeal was not an adjudication of any other questions than those in terms discussed and decided, and that upon this appeal any other question may be assigned for error. This argument would have great weight if the case were here on writ of error, because we have no statute or rule of court that authorizes or permits the filing and consideration of cross-assignments of errors in common-law actions; and were we to hold that on writ of error sued out by the plaintiff a reversal of a judgment at law would thereafter estop the defendant from questioning the propriety of a ruling on a demurrer to the declaration by writ of error sued out by him to bring up for review an adverse judgment, he would be deprived of the opportunity to have the correctness of the decision of the lower court passed upon by this court. However, in chancery causes, successful parties in the court below are permitted to have adverse rulings on pleadings or other interlocutory matters reviewed upon appeal from a final decree favorable to them by assigning such rulings as error.

The public good requires that litigation should be terminated as speedily as possible, if it can be accomplished without jeopardizing any of the rights of the litigants; and this idea doubtless impelled the court to adopt the above-quoted provision of Special Equity Rule 4.

In the state of Georgia, there was a provision in the Civil Code as follows:

'No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto; but, at any stage of the cause, either party may file his exceptions to any decision, sentence, or decree of the superior courts; and if the same is certified and allowed, it shall be entered of record in the cause; and should the case at its final determination be carried by writ of error to the Supreme Court by either party, error may be assigned upon such bill of exceptions, and a reversal and new trial may be allowed thereon, when it is manifest that such erroneous decision of the court has or may have affected the final result of the case.' Section 5526, Civil Code of Georgia 1895.

In construing this provision, the Supreme Court of Georgia, in the case of Hodgkins v. Marshall, 102 Ga. 191, 29 S.E. 174, text 177, held:

'That each writ of error prosecuted to this court brings under review all errors of law alleged to have been committed prior to the time it was issued, and, if the party filing the exceptions pendente lite is the defendant in the first writ of error, he should, either by cross bill of exceptions or upon the record in this court, assign error upon his exceptions pendente lite, or he will be thereafter held to have waived them. This statement is the logic of that decision [ Story v. Brown, 98 Ga. 570, 25 S.E. 582], for, while this court may give direction concerning matters over which it has jurisdiction by virtue of a writ of error sued out to the final judgment of a lower court, it could not give direction touching a matter over which it had no jurisdiction; and if, by means of the writ of error sued out to the final judgment, it did not likewise acquire jurisdiction of all previous interlocutory exceptions, then it would be without jurisdiction to give direction touching such exceptions; and it could not be held that a party would be barred from the subsequent prosecution of his exceptions pendente lite, unless it was held that they become attached to, and a part of, the writ of error first used out after their allowance.

'We have thus far endeavored to show that not only are none of the decisions of this court in conflict with the view we take, but that its previous deliverances are in accord with the view which we now express. Not only is the construction of the Code above quoted a natural one, but it is one which commends itself upon consideration of a sound public policy. That there should be at some time an end to litigation, and that litigants should be encouraged to speed their causes, are important considerations in the administration of the public justice. Any other rule than the one we now lay down might tend indefinitely to protract litigation. We will endeavor to illustrate by one example...