S. R. JOHNSTON, PLAINTIFF IN ERROR,
v.
H. CAMPBELL AND R. E. LEE, DEFENDANTS IN ERROR
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The Florida Supreme Court vacated its prior judgment affirming a trial court's judgment notwithstanding the verdict, holding that even if the defendant's pleas were defective, the trial court should have allowed amendment or repleader and a new trial.
The court held that even if the pleas were defective, the trial court should have allowed for amendment or repleader and a new trial under the relevant statutes, rather than entering judgment notwithstanding the verdict.
“In an action on a promissory note the court overruled a demurrer to pleas of failure of consideration and conditional delivery of the note not complied with.”
Describes the initial procedural posture and the defendant's pleas.
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Join FLexlaw to unlock all legal intelligenceIn an action on a promissory note, the trial court overruled a demurrer to the defendant's pleas of failure of consideration and conditional delivery.…
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— In an action on a promissory note the court overruled a demurrer to pleas of failure of consideration and conditional delivery of the note not complied with. Verdict for the defendant was returned. The court on motion set aside the verdict and rendered judgment for the plaintiffs non obstante veredicto. On writ of error the judgment was affirmed upon the theory that all the pleas were fatally defective. Upon reconsideration it appears that even if the pleas do not state a defense to the action, yet in view of the provisions of Section 2815, Rev. Gen. Stats., 1920, Section 4502, Comp. Gen. Laws, 1927, an amendment or repleader and new trial should have been allowed. The judgment here of affirmance is vacated and the judgment of the trial court is reversed for appropriate proceedings.
Terrell, C. J., and Whitfield, J., concur.
Strum and Brown, J. J., concur specially.
Ellis and Buford, J. J., dissent.
concurring specially: I do not think a judgment non obstante was proper in this case, first, because I think at least one of the pleas was good, and, second, the judgment shows it was based upon the evidence as well as the pleadings. See special concurring opinion by the writer in Pillet v. Ershick, 126 So. R. 784, 788. I therefore doubt the necessity for a repleader, but concur in the judgment of reversal.
Brown, J.,
concurring specially: I do not think a judgment non obstante was proper in this case, first, because I think at least one of the pleas was good, and, second, the judgment shows it was based upon the evidence as well as the pleadings. See special concurring opinion by the writer in Pillet v. Ershick, 126 So. R. 784, 788. I therefore doubt the necessity for a repleader, but concur in the judgment of reversal.
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Dudley v. Harrison, 127 Fla. 687 (Fla. 1937)…77 Fla. 235, 81 So. 440; Slocum v. N. Y. Life Ins. Co., 228 U. S. 364, 57 L. Ed. 879. While not directly and completely in point here, see also as highly persuasive in this connection Evans v. Kloeppel, 72 Fla. 267, 73 So. 180; Johnston v. Campbell, 100 Fla. 393, 129 So. 765; Bond v. Hewitt, 111 Fla. 180, 149 So. 606; Berger v. Mabry, 113 Fla. 31, 151 So. 302; Norwich Union Indemnity Co. v. Willis, 168 So. 417, 124 Fla. 138. Professor Crandall, in his work on Florida Common Law Practice, in Sec. 490, above…