Opinion
Opinion filed July 30, 1930.
A Writ of Error to the Circuit Court for Broward County; Vincent C. Giblin, Judge.
Reversed.
Loftin, Stokes Calkins and Hall, Johnson English, for Plaintiff in Error.
Chancey, Lester Saunders, for Defendants in Error.
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.
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.