JOHN A. BISHOP, PLAINTIFF IN ERROR,
v.
B. F. CAMP AND G. B. GRIFFIN, PARTNERS UNDER THE FIRM NAME OF CAMP & GRIFFIN, DEFENDANTS IN ERROR
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The Florida Supreme Court reversed a default judgment entered against a defendant who had properly pleaded a plea in abatement challenging venue. The court held that when a jury finds against a defendant on such a plea, the proper judgment is one for the plaintiff on the merits, not a default judgment, and the case must be remanded for entry of proper judgment.
A plea in abatement is not a plea to the court's jurisdiction but rather a procedural defense. When a jury finds such a plea untrue, judgment should be entered peremptory for the plaintiff, not a default judgment. The court erred in entering a default for want of a plea when the defendant had properly pleaded and the plea had been traversed and found untrue by the jury.
“The plea interposed by defendant was a plea in abatement. It was not a plea to the jurisdiction of the court. It sought to make available the privilege accorded to defendant by our statutes of being sued in a county other than that in which the action was brought.”
Establishes the distinction between pleas in abatement and jurisdictional pleas, and clarifies the nature of Bishop's defense
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Join FLexlaw to unlock all legal intelligenceOn November 25, 1891, Camp & Griffin sued Bishop in Alachua County Circuit Court for money lent and accounts stated. Bishop entered a general appearan…
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Carter, J.:
On November 25, 1891, defendant in error sued plaintiff in error in the Circuit Court of Alachua county, in an action of assumpsit for money lent, and upon accounts stated. Defendant entered a general appearance on the rule day in December, and subsequently filed a plea praying judgment of the writ and declaration, and that the same be quashed, because the suit “was not brought in either the county in which the said defendant resides, or in which the cause of action accrued, and that Marion county, in the State of Florida, was the county in which the cause of action accrued, and is the county in which the defendant resides.” Plaintiffs replied to this plea that the cause of action sued upon arose and accrued to plaintiffs in the county of Alachua.
On June 14, 1892, at a term of the court then pending, the defendant failing to appear, a jury was impanelled to try the issues raised by this plea and replication only, and its verdict was favorable to the plaintiffs. Upon reception of this verdict the court entered judgment by default against the defendant, for want of a plea, and directed the clerk to assess the damages, and upon such assessment rendered final judgment against defendant for $214.68 and costs, from which this writ of error was taken.
Plaintiff in error contends that the court erred, ' among other things, in entering the default. The plea interposed by defendant was a pleain abatement. It was not a plea to the jurisdiction of the court. It sought to make available the privilege accorded to defendant by our statutes of being sued in a county other than that in which the action was brought. Russ vs. Mitchell, 11 Fla. 80; Gibbs vs. Davis, 27 Fla. 531, 8 South. Rep.
633. Issue having been joined as to the truth of this plea, and the issue having been found in favor of the plaintiffs, the court should have awarded judgment peremtory, quod recuperet, and not a default for want of a plea. I Tidd’s Practice, p. 641; Thompson v. Greenwood, 28 Ind. 327; Brown v. Ill. Central Mut. Ins. Co., 42 Ill.
366. The defendant had made no default in pleading. He had pleaded to the declaration, and upon a traverse of that plea it had been found untrue. This plea presented his only defense to plaintiffs’ suit, and when the jury found against him on this defense, it was thereby determined that plaintiffs were entitled to recover in the action, as much so as if the verdict had been against defendant on a plea of the general issue. The only question left unsettled was as to the amount of plaintiffs’ recovery. The court could and should have directed the jury which tried the issue to assess the damages, in case it found for the plaintiffs upon the issues joined. Failing to do that, the court should have proceeded in some other legal manner to ascertain the amount which plaintiffs were entitled to recover (1 Tidd’s Practice, pp. 574, 576); but it could not enter a-default for want of a plea under these circumstances, any more than it could have entered a default upon sustaining a demurrer to the plea. Garlington vs. Priest, 13 Fla. 559; Hower vs. Lewton, 18 Fla. 328; L’Engle vs. L’Engle, 19 Fla. 714; Pettys vs. Marsh, 24 Fla. 44, 3 South. Rep. 577.
The judgement is reversed, and the case remanded, for the entry of a proper judgment upon the verdict,, and for final judgment upon ascertaining the amount of plaintiff’s recovery.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Payne v. Ivey, 83 Fla. 436 (Fla. 1922)…ef, 237 U. S. 1, 35 Sup. Ct. Rep. 459), the privilege of the defendant as to venue is waived and the court has power to render an. appropriate judgment in the cause. 27 R. C. L. 784; Curtis v. Howard, 33 Fla. 251, 14 South. Rep. 812; Bishop v. Camp, 39 Fla. 517, 22 South. Rep. 735; E. O. Painter Fertilizer Co. v. DuPont, 54 Fla. 288, 45 South. Rep. 507. It does not clearly appear that this is such an action that it must be maintained in the county where the land that was flooded is situated. See Archibald…
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The E. O. Painter Fertilizer Co. v. DuPont, 54 Fla. 288 (Fla. 1907)…. & Pr. 30 and authorities cited. If the privilege is properly pleaded and issue is joined thqreon, and there are no other pleas, on a finding for the plaintiff the appropriate judgment is quod recuperet, that the plaintiff recover. Bishop v. Camp., 39 Fla. 517, 22 South. Rep. 735. Where the defendant succeeds on a plea in abatement, whether the issue be one of law or of fact, the judgment should quash the writ or declaration. Campbell v. Hudson, 106 Mich. 523, 64 N. W. Rep. 483; Clark v. Latham, 25 Ark. 1…
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Ritch v. Park H. Adams, 102 Fla. 983 (Fla. 1931)…iff or defendant; and in abatement of the writ of declaration.” 1 Ency. Pl. & Pr. 3. While this Court has held that “a plea of privilege to the venue is a plea in abatement” (McLendon v. Lurton-Hardaker Co., 83 Fla. 263, 91 So. 113; Bishop v. Camp, 39 Fla. 517, 22 So. 735), yet it appears that the rule requiring a strict consti’uction of pleas in abatement as such does not apply to pleas of privilege, even though a plea of privilege partakes more or less of the nature of a plea in abatement. 1 C. J. 32-33…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Russ v. Mitchell, 11 Fla. 80 (Fla. 1865)
- Wm. H. Garlington v. Priest, 13 Fla. 559 (Fla. 1869)
- L'Engle v. L'Engle, 19 Fla. 714 (Fla. 1883)
- Gibbs v. Davis, 27 Fla. 531 (Fla. 1891)
- Hower v. Lewton, 18 Fla. 328 (Fla. 1881)
- Pettys v. Alphonso Marsh, 24 Fla. 44 (Fla. 1888)