AMERICAN TIE & TIMBER COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
SHERMAN WASHINGTON, DEFENDANT IN ERROR
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American Tie & Timber Company appeals a judgment against it for $259.20 in a debt action. The Florida Supreme Court affirms, rejecting the defendant's contention that surprise at trial—when issues were joined and the case tried on the same day in the absence of defendant's counsel—constituted reversible error.
The court's joinder of issue and trial on the same day did not constitute an abuse of discretion requiring reversal. The defendant's counsel had a duty to be present during the term when issues could be joined and trial conducted under the law, and any question of whether counsel's absence in Tallahassee as a legislative attache was good cause for continuance was within the trial court's discretion.
“The pleas were filed February 6th, 1911, and it was the duty of the plaintiff to reply thereto or join issue thereon, at least by the ensuing term of the court, and it was the duty of the defendant's counsel to be present in the court at the time the issues could have been joined and the trial of the action proceeded with under the law.”
Establishes the duties of both parties and counsel to be prepared for issue joinder and trial, supporting the court's rejection of surprise as grounds for reversal.
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Join FLexlaw to unlock all legal intelligenceSherman Washington filed a declaration in common counts against American Tie & Timber Company for $248.00 in Suwannee County Circuit Court on December…
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Whitfield, C. J.
— The declaration filed December 5, 1910, by Sherman Washington in the Circuit Court for Suwannee County, was in the common counts for $248.00. On February 6, 1911, the defendant corporation filed two pleas, one of never was indebted, and the other a special pleas of set off with a bill of particulars attached. On May 9,1911, during a term of the court the plaintiff joined issue on the two pleas. Sec. 1447, Gen. Stats. A trial was had the same day in the absence of defendant’s counsel, and judgment for the plaintiff in $259.20, was rendered, to which the defendant took writ of error. The defendant in error is not represented in this court, -but as the writ of error was duly recorded under the statutes this court has jurisdiction of the subject-matter and of the defendant in error for the purposes of this case.
It is contended that the joinder of issue on the pleas during the term of the court and the trial of the cause on the same day in the absence of counsel for the defendant, was such a surprise to counsel as to make the judgment erroneous and subject to reversal on writ of error. This may be a hard case, but no such abuse of discretion is shown in the conduct of the trial as requires a reversal of the judgment. The pleas were filed February 6th, 1911, and it was the duty of the plaintiff to reply thereto or join issue thereon, at least by the ensuing term of the court, and it was the duty of the defendant’s counsel to be present in the court at the time the issues could have been joined and the trial of the action proceeded with under the law. See Flournoy v. Munson Bros., 51 Fla. 198, 41 South. Rep. 398.
It is stated in the brief that counsel for the defendant below was absent in Tallahassee as an attache of the Florida Legislature when the issues were joined and the trial had. Whether this was, or was not, a good reason for a continuance of the cause was for the determination of the trial court. Only the record proper is here, and there is nothing to indicate such an abuse of discretion by the trial court as calls for a reversal of the judgment, therefore the judgment is affirmed.
Shackleford and Cockrell, J. J., concur;
Taylor, Hocker and Parkhill, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wilhelm v. S. Indian River Co., 98 Fla. 970 (Fla. 1929)…and be not served with a notice of such trial. Comp. Gen. Laws 1927, Sec. 4286; Rev. Gen. Stats. See. 2620; Flournoy v. Munson, 51 Fla. 198, 41 So. R. 398; Hadlow Co. v. Sargent, 61 Fla. 263, 54 So. R. 1003; American Tie & Timber Co. v. Washington, 62 Fla. 117, 57 So. R. 201. Two affidavits were filed below in support of the motion for new trial, the substance of which is as follows: One by secretary and treasurer of defendant company on behalf of company and as agent for other defendant alleging plainti…
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Carroll v. Gore, 106 Fla. 582 (Fla. 1932)…ff so elects. Flournoy v. Munson Bros. Co., 51 Fla. 198, 41 So. 398. In fact a cause may be properly submitted to the jury notwithstanding the plaintiff has filed no replication to amended pleas containing new matter. American Tie Co. v. Washington, 62 Fla. 117, 57 So. 201. See also Circuit Court Rule 20, in law cases. As already observed, the original pleas to which plaintiff had replicated, were unquestionably bad and insufficient; however, the general rule in such cases is that a “bad replication is a g…
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Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967)…e trial, which had been duly noticed, upon the failure of the defendant or her counsel to appear. See: Flournoy v. Munson Bros. Co., 51 Fla. 198, 41 So. 398; W. T. Hadlow v. Sargent, 61 Fla. 236, 54 So. 1003; American Tie & Timber Co. v. Washington, 62 Fla. 117, 57 So. 201; Wilhelm v. South Indian River Company, 98 Fla. 970, 124 So. 729. He was not required to continue the matter; and if counsel was derelict in attending to his client’s cause he would be liable to her for such. See: Weekley v. Knight, 116…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flournoy v. Munson Bros. Co., 51 Fla. 198 (Fla. 1906)