Opinion
February 5, 1952. Rehearing Denied February 23, 1952.
Appeal from the Circuit Court for Sarasota County, Lynn Gerald, J.
Randolph Calhoun, Gale K. Greene and John R. Wood, all of Sarasota, for appellant.
Rosin, Paderewski Lewis, Sarasota, for appellee.
This is a suit on a promissory note executed on November 18, 1939. Suit was instituted in May of 1946. One set of pleas were filed, and upon motion were stricken as sham pleas. The defendant was given time to file amended pleas as it may be advised. Within the time allowed the defendant filed amended pleas.
Only two questions are presented. The first question is: Did the Court err in granting appellee's motion to strike as sham a plea which alleged that: "Said note is more than 5 years old and barred by the Statute of Limitations"?
No impression seal appeared upon the note. It was not an ordinary note such as you would secure from a bank where the blanks were to be filled in. It was a typewritten note prepared for this particular occasion. The note was signed as follows:
"Sarasota Kennel Club, Inc. Seal
Joseph A. Cook Seal
Pres. Joseph A. Cook Seal"
The word "seal" was typewritten in after the name of the corporation, and after the name of the President of the Corporation, and after the name of Joseph A. Cook, individually. It is urged by the appellant that this note is not under seal because no impression seal adopted by the corporation was used. There is no merit in this contention. This question was settled many years ago in the case of Campbell v. McLaurin Investment Co., 74 Fla. 501, 77 So. 277.
The second question is: Did the Court commit error in striking as a sham plea the appellant's plea, which reads as follows: "For Fifth Plea your defendant says that there was no consideration of said note in that Sarasota Kennel Club, Inc., was not indebted to the plaintiff at the time, had received no benefits from the said plaintiff, well knew the defendant corporation had received no benefits or consideration for the execution of said note at the time same was executed"?
After this plea was filed, the appellee filed a motion to strike the same as a sham plea, and an affidavit setting forth in considerable detail the facts surrounding the execution and delivery of the note and the delivery of the money and the reason why the defendant needed the money and what it was used for. Thereafter the defendant was given due and timely notice of a hearing upon this motion to strike and the case came on to be heard. The defendant had ample opportunity to file a counter-affidavit as to the facts alleged in this motion and affidavit, or to offer evidence at the time of the hearing on this motion. The defendant filed no counter-affidavit and offered no evidence. Therefore, there was no dispute whatsoever as to the facts set forth in the motion and affidavit at the time of the hearing on the motion. The sworn plea of the defendant did not deny any of the facts set forth in the motion or affidavit of the plaintiff below, appellee here. The procedure was in full compliance with the rule relating to sham pleas. There is no merit in this assignment of error.
Affirmed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.