R. F. HAYS AND OTHERS, PLAINTIFFS IN ERROR,
v.
J. W. WEEKS, DEFENDANT IN ERROR
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Hays was sued on a promissory note and lost at trial. He appealed, arguing that his earlier unsuccessful replevin action should bar this suit and that the trial court erred in entering default judgment despite his first plea remaining on record. The Florida Supreme Court reversed, finding that the replevin action did not bar the suit because only one remedy actually existed, and that entry of default was improper while a plea remained on the record.
The court held that when in fact or in law only one remedy exists and a mistaken remedy is pursued, the proper remedy is not thereby waived. Multiple remedies must actually exist for the doctrine of election to bar recovery. Additionally, a default judgment cannot be properly entered for want of a plea when a plea remains of record.
“If in fact or in law only one remedy exists, and a mistaken remedy is pursued the proper remedy is not thereby waived.”
Establishes the exception to the election of remedies doctrine: parties are not precluded from pursuing the correct remedy when only one actually exists.
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Join FLexlaw to unlock all legal intelligenceWeeks obtained judgment against Hays for $437.66 on a promissory note and against sureties R. H. Holmes and W. F. Brannon for $200 on a forthcoming bo…
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Cockrell, J.
Weeks recovered judgment against Hays upon a promissory note in the sum of $437.66' and against R. H. Holmes and W. F. Brannon as sureties on a forthcoming bond in the sum of $200 to which the defendants have prosecuted this writ of error. To the declaration Hays pleaded that the plaintiffs had unsuccessfully sued in replevin upon the same cause of action. See Weeks v. Hays, 55 Fla. 370, 45 South. Rep. 987. The sustaining of a demurrer to this plea is the first assignment of error. We held heretofore that the written contract did not reserve title to or possession in the property sold in the plaintiff and therefore he could not recover in replevin, and the question now presented is does the mistaken election between inconsistent supposed' remedies where only one in fact exists, preclude the pursuing the correct one?
In the recent case of the American Process Co. v. Florida White Press Brick Co., 56 Fla. 116, 47 South. Rep. 942, we held that a party will not be permitted to enforce wholly inconsistent demands respecting the same right, and in Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 South. Rep. 435, that the recovery of a judgment, _even though without satisfaction, destroyed the plaintiff’s right of election; but in the former case we were careful to say: “If in fact or in law only one remedy exists, and a mistaken remedy is pursued the proper remedy is not thereby waived.” More than one remedy must actually exist.
We think the rule there announced is sound and well supported by the cases there cited; the order upon the demurrer is in line with that announcement and will not be disturbed.
The defendant filed an additional plea which is admittedly a substantial repetition of the first plea and was properly stricken.
No further action by the Circuit Court itself was requested or taken. A default for want of a plea and final judgment thereon was entered by the clerk. The first plea filed to which demurrer was sustained, remained of record .and it was error to enter default for want of a plea. Garlington v. Priest, 13 Fla. 559; L’Engle v. Hartridge, 19 Fla. 714; Pettys v. Marsh, 24 Fla. 44, 3 South. Rep. 577.
There are serious objections offered to the validity and. form of the final judgment and as to the liability of the sureties in this summary proceeding upon the carelessly worded attachment .bond. We prefer having these objections, such as may not be curable passed upon pri marily by the Circuit Judge; and do not now express a final opinion upon them.
The judgment is reversed.
All concur except Parkhill, J., absent on account of illness.
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Citator
Cited By
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Cap. City Bank v. Hilson, 64 Fla. 206 (Fla. 1912)…ved and followed in several subsequent opinions. See Ocala Foundry & Machine Works v. Lester, 49 Fla. 347, 38 South. Rep. 56; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 South. Rep. 942, 16 Ann. Cas. 1054; Hays v. Weeks, 57 Fla. 73, 48 South. Rep. 997; Malsby v. Gamble, 63 Fla. 508, 57 South. Rep. 687. The difficulty is not with the rule, but with its application to the facts as they are presented in a particular case. As we held in American Process Co. v. Florida White Presse…
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Malsby v. Gamble, 63 Fla. 508 (Fla. 1912)…We think it is clearly apparent from the decision in the cited case of Malsby v. Gamble, supra, that in bringing the action of replevin Malsby mistook his remedy, and in such a case the doctrine of election of remedies does not apply. Hays v. Weeks, 57 Fla. 73, 48 South. Rep. 997; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 South. Rep. 942. The allegation of the insolvency of Gamble in our opinion under the peculiar circumstances of this case, at least states such a prima fac…
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Anderson T. Herd v. Maloney, 92 Fla. 789 (Fla. 1926)…s the harmless error statute (Sec. 2812 Rev. Gen. Stats.) in 1911, fully support the contention of plaintiff in error. Garlington v. Priest, 13 Fla. 559; L’Engle v. L’Engle, 19 Fla. 714; Pettys v. Marsh, 24 Fla. 44, 3 South. Rep. 577; Hays v. Weeks, 57 Fla. 73, 48 South Rep. 997; Cosmopolitan Fire Ins. Co. v. Boatwright, 59 Fla. 232, 51 South. Rep. 540. Section 2812 Revised General Statutes, 1920, in effect [*792] provides that no judgment shall be set aside or reversed or new. trial granted by any court…
Authorities Cited
- Am. Process Co. v. Fla. White Pressed Brick Co., 56 Fla. 116 (Fla. 1908)
- Campbell v. The Kauffman Milling Co., 42 Fla. 328 (Fla. 1900)
- Wm. H. Garlington v. Priest, 13 Fla. 559 (Fla. 1869)
- L'Engle v. L'Engle, 19 Fla. 714 (Fla. 1883)
- Pettys v. Alphonso Marsh, 24 Fla. 44 (Fla. 1888)
- Weeks v. Hays, 55 Fla. 370 (Fla. 1908)