Opinion
Opinion Filed July 23, 1936.
Supplemental Opinion Filed August 6, 1936. Rehearing Denied September 8, 1936.
A writ of error to the Circuit Court for Jackson County, A.G. Campbell, Judge.
B.L. Solomon, for Plaintiffs in Error;
Cecil A. Rountree, for Defendant in Error.
The writ of error brings for review a judgment in a common law action which judgment was entered in the Circuit Court in and for Jackson County, the 14th Judicial Circuit of Florida, by the Hon. A.G. Campbell, Judge of the First Judicial Circuit of Florida on the 1st day of October, 1935, in favor of the defendant in error against the plaintiff in error.
The record shows that the judgment was entered by Judge Campbell after Judge E.C. Welch, one of the Judges of the Fourteenth Judicial Circuit, had filed a certificate of his disqualification and after proof that the Hon. D.J. Jones, the other Judge of the Fourteenth Judicial Circuit, was absent from the Circuit on account of illness.
The sole question presented for our determination is whether or not Section 10 of Chapter 16053, Laws of 1933, supersedes the provisions of Section 2681 R.G.S., 4348 C.G.L., Act, Chapter 16053, supra, is entitled:
"AN ACT to Define When a Judge is Disqualified; to Establish the Manner and Mode of Determining such Disqualification; To Define the Effect of Acts by Judges who Are, Were or May Be Disqualified; and for the Repeal of Section 2525 of the Revised General Statutes of 1920, shown as Section 4152 of The Compiled General Laws of 1927, and Section 2528 of the Revised General Statutes of 1920, Shown as Section 4155 of the Compiled General Laws of 1927, Said Sections Relating to the Disqualification of Judges."
Section 10 of the Act provides as follows:
"Section 10. DESIGNATION OF JUDGE TO HEAR CAUSE WHEN ORDER OF DISQUALIFICATION ENTERED: Every Judge of this State shall upon the entry of an Order of Disqualification mail a copy of said order to the Governor. Upon receipt of copy of such order the Governor shall thereupon designate another Judge to hear said cause. The original of such designation by the Governor shall be mailed therewith to the Clerk of the Court in which said cause is pending and shall be by said Clerk filed in the cause. In designating another Judge the Governor shall have consideration for the convenience of parties and their counsel. Provided, however, that in the event any judge shall be disqualified as herein provided, upon application for any temporary writ of injunction or habeas corpus, he shall immediately enter an order of disqualification, whereupon said cause may be presented to any other Judge of a Court of the same jurisdiction as the Court in which said cause is pending, and it shall be the duty of any such Judge to hear and determine such matters until such substitute judge is so designated."
The constitutionality of the section of the Act is not challenged. The provisions thereof are repugnant to and in conflict with Section 2681 R.G.S., 4348 C.G.L., and Section 12 of Chapter 16053, supra, specifically repeals all the laws in conflict therewith. It, therefore, must be held that the provisions of Section 10 of the 1933 Act, supra, repealed the provisions of Section 2681 R.G.S., 4348 C.G.L. It is conceded that the provisions of Chapter 16053 were not complied with in that upon the disqualification of Judge Welch no designation had been made by the Governor authorizing a Judge of another Circuit to proceed to make orders in the cause.
Therefore, the judgment rendered by Judge Campbell was one which he did not at the time have jurisdiction to enter and must, therefore, be reversed.
It is so ordered.
Reversed.
ELLIS, P.J., and TERRELL, J., concur.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment.
(SUPPLEMENT TO OPINION FILED JULY 23, 1936.)
In this case our attention has been called to the fact that the plaintiffs in error contended that a demurrer to a plea interposed was erroneously sustained and that in disposing of the case we did not mention that contention in the opinion prepared.
The cause of action was a guarantor's obligation, a pertinent part of which was as follows:
"FOR AND IN CONSIDERATION of One Dollar, to us in hand paid by McConnon Company, the receipt whereof is hereby acknowledged, we hereby jointly and severally guarantee, absolutely and unconditionally at all times, payment at Winona, Minnesota, of any indebtedness to the said McConnon Company, hereafter incurred by or for Ulysses McDonald of Graceville, State of Florida, by reason of the sale of goods, wares, merchandise and equipment to him, from time to time, by the said McConnon Company pursuant to any agreements, terms or conditions entered into between the Company and him, and regardless of his ability or willingness to pay and we hereby waive notice of any default by the said Ulysses McDonald and consent to any extensions by McConnon Company of time of payment by him."
The plea interposed was as follows:
"That subsequent to the execution of the guaranty sued on herein, the plaintiff by its acts towards, and instructions and directions to the said Ulysses McDonald, by caprice and inducement inveigled the said Ulysses McDonald to adopt a system which the contract secured by said guaranty did not call for in dealing with purchasers of the merchandise delivered by the plaintiff to the said Ulysses McDonald, that is, by caprice and inducement inveigled the said Ulysses McDonald to place the merchandise so delivered to him out with customers on the so-called time and trial plan, plaintiff thereby assuming the credit list and chance of loss, rather than selling the same to the said Ulysses McDonald, and thereby by such acts and directions the plaintiff waived its right to hold the said Ulysses McDonald, or these defendants liable therefor. That the said Ulysses McDonald acting under and by the aforesaid acts and instructions of the plaintiff placed goods delivered by the plaintiff to him with customers under the aforesaid plan amounting to the sum of Two Hundred, Sixty-eight and 80/100 Dollars, an amount in excess of the amount sued for herein. Wherefore, these defendants say that they are not liable to the plaintiff in any sum."
The allegations of the plea were entirely insufficient to constitute a defense to the declaration.
The guarantors by their written agreement unconditionally guaranteed payment at Winona, Minnesota, of any indebtedness to McConnon Company thereafter incurred by or for Ulysses McDonald of Graceville, Florida, by reason of the sale of any goods, wares, merchandise and equipment to him by said McConnor Company pursuant to "any agreements, terms or conditions entered into between the company and him." (Emphasis supplied.)
The plaintiff in error relied in his brief on the opinion and judgment in the case of W.T. Rawleigh Company v. C.A. Langford, et al., 112 Fla. 487, 150 So. 592, but that case presents no authority for his position. All that was decided there was that defense of waiver, release or estoppel as applied to provisions of written contract sued on must be specifically pleaded to be available and there was no intimation that conditions such as are pleaded here would constitute waiver, release or estoppel.
In the original opinion filed herein on July 23, 1936, we pointed out the only error apparent on the record.
ELLIS, P.J., and TERRELL and BUFORD, J.J., concur.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment.
IN THE SUPREME COURT OF FLORIDA JUNE TERM, A.D. 1936
IN RE: AMENDMENT AND REVISION OF COMMON LAW RULES FOR THE GOVERNMENT OF TRIAL COURTS IN COMMON LAW CASES.
Order entered September 18, 1936.
This matter coming on to be heard upon certain objections and amendment to the proposed draft of Amendment and Revision of Common Law Rules for the Government of Trial Courts in Common Law Cases, as adopted by this Court on April 27, 1936 ( 122 Fla. 881), and the Court having considered the several objections and proposals submitted with respect to the draft of rules as published, it is thereupon ordered that the following amendments to the proposed draft of rules to become effective October 1, 1936, are hereby adopted and promulgated, that is to say that Rule 53 be and the same is hereby amended to read as follows:
"The plaintiff may at any time discontinue his cause in the clerk's office by paying costs and entering a written discontinuance thereof. Such discontinuance shall not affect any claim asserted by the defendant by way of set-off but such defendant may proceed to a trial on his claim on the pleadings as previously had or the court may upon the motion of either party or of its own motion order a repleader in order that such claim may be adjudicated."
That paragraph (f) of Rule 54 be and the same is hereby amended to read as follows:
"(f) The Court may compel a party to disclose the names of witnesses and their addresses, if justice seems to require, upon such terms and conditions as the court may deem expedient, where the names of witnesses are in the exclusive possession of one party to the action. But no such order shall be made except after due notice and hearing upon a specific showing of special facts and circumstances adduced in support of the application, the burden in every case being upon the movant to demonstrate some real necessity in the interest of the administration of justice for the making of an order under this subdivision."
That Rule 74 be amended by adding thereto the following additional provisions and paragraphs to be designated as paragraphs (c) and (d):
"(c) In order to entitle the party against whom such ruling is made to have the same reviewed by the appellate court, it shall not be necessary to object or except to any order granting or denying motions for new trials, directed verdicts, non suits, or judgments non obstante veredicto."
"(d) In every case where the trial court shall enter an order granting a motion for a new trial, the trial judge shall indicate in the order granting said motion the particular ground or grounds upon which said motion was granted, and upon writ of error to any such order granting a new trial, if taken under the statutes providing for writs of error to orders granting new trials, no other grounds than those specified by the trial Judge, as a basis for the order granting the new trial, shall be considered as arguable upon said writ of error."
That Rule 88 of said proposed amendment and revision of rules be and the same is hereby amended to read as follows:
"The bill of exceptions should be made up and signed or lodged in the office of the Clerk within 90 days after verdict or order on motion for new trial, unless by special order entered within such time (whether the term shall have expired or not) further time be allowed. In case such special order be made, it shall be entered in the minutes, and in making up the bill of exceptions the fact that such an order was made shall be mentioned therein, or shall otherwise appear in the record."
That Rule 94 of said proposed Amendment and Revision of Rules be and the same is hereby amended to read as follows:
"When the questions presented in the appellate proceeding by the assignments of error can be determined by the appellate court without an examination of all the pleadings and evidence, the parties, with the approval of the trial court may prepare and sign a statement of the case showing how the questions arose and were decided in the trial court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the appellate court. Such statement, when filed in the office of the clerk of the trial court, shall be treated as superseding, for the purposes of the appellate proceedings, all parts of the record other than the order or judgment to which writ of error is taken, and together with such order or judgment, shall be copied and certified to the appellate court as the record."
That Rule 95 of said proposed Amendment and Revision of Common Law Rules be and the same is hereby amended to read as follows:
"Upon appellate proceedings it shall be presumed, unless the record show to the contrary, that such record, including the bill of exceptions and original exhibits transmitted to the appellate court, contains all proceedings in the trial court material to the questions presented by the assignments of error for decision by the appellate court."
That an additional Rule to be designated as Rule 96 be and the same is hereby adopted and promulgated to become effective at the same time as are the other proposed Rules.
"Rule 96. Where copies of pleadings, transcripts, briefs or bills of exceptions are required to be served upon adverse parties, service upon one of such parties shall be deemed to be a compliance with the rule. Provided, that any adverse party not so served, for good cause shown, after notice, may request the court to require the furnishing of such copy or copies to him, and the court, in its discretion, may require the furnishing of such copy or copies to such adverse party."
That all other objections and proposals made and submitted with reference to said Rules not heretofore or herein and hereby specifically adopted and approved by this Court be and the same are hereby disallowed, without prejudice to an application for a further consideration of same after the proposed Amendment and Revision of said Common Law Rules shall have been experimentally tested in their practical application for a period of three months or more.
It is further considered and ordered by the Court that the Special Committee under whose direction the proposed amendment and revision of common law rules has been suggested and formulated be and the same is hereby constituted and made a Committee of this Court for the period ending January 1, 1938, for the purpose of giving further study and consideration to the said rules in their actual practice, and to study and consider the advisability of further revisions and amendments therein as an aid to the practical administration of justice and as a cure for any imperfections that may be therein found.
It is further ordered by the Court that this order be published in the official reports of this Court as a part of the Rules heretofore adopted and published in 122 Fla. at page 881, et seq., and that a copy of this order be sent to the Chairman of the Special Rules Committee hereinbefore referred to.
WHITFIELD, C.J., and ELLIS, TERRELL, BROWN, BUFORD and DAVIS, J.J., concur.