SAMUEL L. OWENS, AS ADMINISTRATOR OF THE ESTATE OF H. D. OWENS, DECEASED, PLAINTIFF IN ERROR
v.
CHANCEY S. WILSON AND WILLIAM A. FULTON, DEFENDANTS IN ERROR
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In this writ of error from a distress proceeding, the Florida Supreme Court affirmed the trial court's grant of a new trial, holding that a plea denying the existence of a landlord-tenant relationship at the time the action was commenced tendered an immaterial issue requiring a new trial. The court also clarified that under Florida statute, the relevant question is whether the landlord-tenant relation existed when the right of action accrued, not when the action was begun.
The court held that the plea tendered an immaterial issue, thus properly calling for a new trial. The court further held that under Florida statute, the question is whether the landlord-tenant relation existed when the right of action accrued, not when the action began, and that the cessation of the landlord-tenant relationship does not destroy the right to distress.
“Our statute provides merely the manner and time within which such motions are to be made and does not prescribe or limit the class of actions where permitted. It is a wholesome and ancient method of correcting promptly and inexpensively errors that may creep into the rulings of the court or findings of the jury, and the silence of the statute does not inhibit its use.”
Establishes that motions for new trials are permissible in distress proceedings despite statutory silence on the issue, and explains the purpose and value of such motions.
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Join FLexlaw to unlock all legal intelligenceThis was a distress proceeding brought by Samuel L. Owens as administrator of H. D. Owens's estate against Chancey S. Wilson and William A. Fulton. Th…
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Cockrell, J.
This is a writ of error addressed to the grant of a new trial upon verdict for the defendant in a distress proceeding. Upon such a writ, unlike one di rected to a final judgment, the only questions to be considered are those involved in the order granting the' new trial. Jones v. Jacksonville Electric Co., 56 Fla., 452, 47 South. Rep. 1.
It is insisted that distress proceedings are entirely regulated by statute and as the statute provides for appeals and is silent as to motions for new trials, such procedure is forbidden by implication. There may be authority for this position in some Code States, but we see no occasion for adopting such construction here. Our statute provides merely the manner and time within which such motions are to be made and does not prescribe or limit the class of actions where permitted. It is a wholesome and ancient method of correcting promptly and inexpensively errors that may creep into the rulings of the court or findings of the jury, and the silence of the statute does not inhibit its use.
A plea was interposed to the distress affidavit, which serves the office of a declaration, to the effect that the relation of landlord and tenant did not exist when the proceedings were commenced. Issue was joined upon this plea and was submitted to the jury, upon evidence in its support.
We think this plea tendered an immaterial issue, thus calling for a new trial. Jones v. Shomaker, 41 Fla. 232, 26 South. Rep. 191.
While at the common law it would seem that with the expiration of the landlord’s title the right to distress ceased, yet in many respects writs of distress have been modified by statute and in this respect the right has been enlarged. The statute, General Statutes section 2240 gives the writ to “Any person to whom any rent or money for advances may be due.” Again a lien is given to “Every person to whom rent may be due” * * * “Upon all property of the defendant.” General Statutes Para graph 2237. The question is whether the relation of landlord and tenant existed at the time the right of action accrued, not at the time the action began. It has been held under similar statutes in Georgia and Texas, that the cessation of the relationship did not destroy the right to the writ. Tyner v. Slappy, 74 Ga. 364; Meyer, Weis & Co. v. Oliver, 61 Texas 584.
It follows that the order he affirmed.
Whitfield, C. J., and Shackleford, J., concur. Taylor, Hocker and Parkhill, JJ., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Theola Ruff v. Georgia, 67 Fla. 224 (Fla. 1914)…o be considered are those involved in the [*236] order granting the new trial. This is the rule whether the verdict was for the plaintiff or for the defendant below. Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 South. Rep. 1; Owens v. Wilson, 58 Fla. 335, 50 South. Rep. 674; Dunnellon Phosphate Co. v. Crystal River Lumber Co., 63 Fla. 131, 58 South. Rep. 786; Beverly v. Hardaway, 66 Fla. 177, 63 South. Rep. 702. Where a trial court erroneously grants a new trial in an action at law the order may be…
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Evans v. Kloeppel, 72 Fla. 267 (Fla. 1916)…erdict rendered upon an immaterial issue, the appellate court should reverse it, though it may not direct a judgment of repleader. See American Process Co. v. Florida White Press Brick Co., 56 Fla. 116, text 126, 47 South. Rep. 942; Owens v. Wilson, 58 Fla. 335, 50 South. Rep. 674; Hyer v. Vaughn, 18 Fla. 647; Hiding v. Florida Savings Bank, supra. As to the second and third pleas, they presented no point either in bar, abatement or set-off, and so far as they were concerned the plaintiff could have treat…
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Beckwith v. Bailey, 119 Fla. 316 (Fla. 1935)…peal are therefore limited in nature. Upon a writ of error to an order granting a new trial, the only questions to be considered are those involved in such order. See: Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 Sou. Rep. 1; Owens v. Wilson, 58 Fla. 335, 50 Sou. Rep. 674, 138 Am. St. Rep. 117, 19 Ann. Cas. 267; Dunnellon Phosphate Co. v. Crystal River Lumber Co., 63 Fla. 131, 58 Sou. Rep. 786; Beverly v. Hardaway, 66 Fla. 177, 63 Sou. Rep. 702; Ruff v. Georgia S. & F. R. Co., 67 Fla. 224, 64 Sou. R…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. Jacksonville Elec. Co., 56 Fla. 452 (Fla. 1908)
- Jones v. Shomaker, 41 Fla. 232 (Fla. 1899)