E. L. EMERSON, PETITIONER,
v.
FRANK W. HUGHSON AND GEORGE M. OKELL, DEFENDANTS IN CERTIORARI
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E. L. Emerson sought certiorari review of a jury verdict in favor of defendants on a promissory note claim. The Florida Supreme Court quashed the certiorari petition because the Circuit Court's affirmance of the Civil Court judgment was not subject to review without a proper authenticated bill of exceptions.
The certiorari petition was quashed because the Circuit Court's affirmance did not violate essential requirements of law, as there was no authenticated bill of exceptions in the transcript filed in the Circuit Court. Without such a bill, the Circuit Court's affirmance could not be properly reviewed.
“We do not approve of the inclusion in the judgment rendered by the Judge of the Civil Court of Record in the case of the paragraph reading as follows: 'IT IS FURTHER ORDERED AND ADJUDGED By the Court that this judgment is entered without prejudice to the plaintiff to bring any other appropriate action in any appropriate court for the recovery of his said claim against said defendants.'”
The Court disapproved of the 'without prejudice' language but found it harmless because it favored the petitioner.
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Join FLexlaw to unlock all legal intelligenceEmerson, as an alleged assignee in due course of a promissory note, sued defendants Hughson and Okell for payment. The defendants pleaded failure of c…
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This case is before us on certiorari to review the judgment of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, affirming the judgment of the Civil Court of Record in and for Dade County, Florida, rendered in a suit on a promissory note wherein the petitioner in certiorari was plaintiff and Frank W. Hughson and George M. Okell were defendants.
The verdict in the Civil Court of Record was: “We, the jury, find for the defendant. So say we all.” Signed “Allen Spires, Foreman.”
The judgment upon the verdict was as follows:
“IT IS THEREUPON ORDERED AND ADJUDGED By the court that judgment be and is hereby rendered in favor of the defendants Frank W. Hugh-son and George M. Okell and against the plaintiff D. L. Emerson and that said plaintiff take nothing by his *559said suit, and that the costs in this cause be taxed against the plaintiff.
“IT IS FURTHER ORDERED AND ADJUDGED By the Court that this judgment is entered without prejudice to the plaintiff to bring any other appropriate action in any appropriate court for the recovery of his said claim against said defendants.
“DONE AND ORDERED at Miami, Dade County, Florida, this the 14th day of July, 1931.
A. B. Small
Judge Civil Court of Record in and for Dade County, Florida.”
The declaration was in conventional form declaring on a promissory note alleging that the plaintiff was the assignee in due course and was at the time the legal owner and holder of the note and was entitled to receive payment of the-same.
There were amended pleas to the declaration in which the defendants pleaded failure of consideration and alleged that the plaintiff had, at the time of the assignment of the note to the plaintiff, direct and full knowledge of the infirmities pleaded. The pleas alleged sufficient facts to constitute a valid defense to the declaration. Sumter County State Bank vs. Hays, 68 Fla. 473, 67 Sou. 109. The plaintiff joined issue on the pleas. The trial resulted as above stated.
We do not approve of the inclusion in the judgment rendered by the Judge of the Civil Court of Record in the case of the paragraph reading as follows:
“IT IS FURTHER ORDERED AND ADJUDGED By the Court that this judgment is entered without prejudice to the plaintiff to bring any other appropriate action in any appropriate court for the recovery of his said claim against said defendants.”
But the petitioner here, who was the plaintiff in that court and the plaintiff in error in the Circuit Court, is not in position to complain of this provision in the judgment because such provision contains nothing adverse to *560Mm. Whether or not it is a valid provision we do not here determine, but i'f it is valid it is in favor of the petitioner and if invalid it amounts to no more than surplusage.
On writ of error from the Circuit Court to the Civil Court of Record it developed that the transcript filed in the Circuit Court contained no authenticated bill of exceptions and, therefore, there appears to have been no violation of the essential requirements of law in the affirming of the judgment of the Civil Court of Record. It, therefore, follows that the writ of certiorari issued herein should be quashed and it is so ordered.
Certiorari quashed.'
Buford, C.J., and Ellis and Brown, J.J., concur.
Whitfield, P.J., and Terrell and Davis, J.J., concur in the opinion and judgment.
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Crane Tile Co. & Phoenix Conn. Grp. Cos. v. Jenkins, 105 So. 2d 795 (Fla. 3d DCA 1958)…s true that petitioner here has alleged the error of the Commission in vacating the disability award, but that portion of the award could not be considered adverse to the petitioner and therefore is not subject to our review. See Emerson v. Hughson, 105 Fla. 558, 141 So. 877. Cf. Federal Trade Commission v. Pacific States Paper Trade Association, 273 U.S. 52, 47 S.Ct. 255, 71 L.Ed. 534; Alexander v. Cosden Pipe Line Co., 290 U.S. 484, 54 S.Ct. 292, 78 L.Ed. 452. The petition for certiorari is granted. Acco…
Authorities Cited
- Sumter Cnty. State Bank v. Hays, 68 Fla. 473 (Fla. 1914)