Baars & Downing v. Gordon & Stamp

21 Fla. 25 | Fla. | 1884

The Chiee Justice

delivered the opinion of the court:

As to the first error assigned, the opening of the default, which, by the statute, is within the sound discretion of the ■court, we cannot say that there was any abuse of discretion. Russ vs. Gilbert, 19 Fla., 54. But there was a subsequent default entered against defendants, which was not set aside ■except by the effect of the final j udgment.

2. As to the dissolution of the attachment, it appears by the record and by the briefs of counsel that it was dissolved ■on the ground that the bond was joint and not several as to the principals and sureties; or that it was signed by only ,ne of the principals, signing in the copartnership name. 'The precise ground of dissolution of the writ is not stated.

The statute requires that the plaintiff shall by himself or his agent or attorney enter into bond with at least two sufficient securities. That this paper was a bond is not denied, but it is claimed that, it is not a several obligation, and that it is not such a security as the law contemplates, because in ■case of the death of one of the securities there is no remedy against the representatives of the deceased joint obligor. This is not a legitimate question here. This bond is signed by the principals and by two others, binding not only themselves but their executors and administrators. These two others are securities, parties who have bound themselves ■with the parties to the suit to secure performance by the latter according to the condition of the bond.

As words of severalty are not employed in the statute, a joint bond is a compliance with the law. This was expressly held in Pickersgill vs. Lahens, 15 Wallace, 140.

The objection that the bond was signed by the copartnership name is not sustained by the copy of the record before us. The names of both the ■ partners are attached as ¡signers, and though they both sign against one seal, it is a .good sealing. 1 Ela., 52.

As to the signing of attachment bonds by one partner in the partnership name, see Jeffreys vs. Coleman, 20 Fla., 536 ; Ross, Keen & Co. vs. Steen, ib., 443.

The other ground of the motion to dismiss, to wit: the •denial of the allegation as to the debt or sum demanded, ■does not appear .to have been passed upon. There was no trial of the issue made on that subject.

3. As to the dismissal of the suit.

It appears that the suit was commenced by filing a praecipe for a summons ad respondendum against defendants and •an attachment against their property. The summons was issued and returned served on a person not a defendant. 'The attachment was executed by levying upon property. What publication was made, if any, does not appear. The writs were issued in September, and in January following, •after declaration filed, the defendants entered their appearance by attorney, and on showing cause and “ to enable pleas to be sent to England for verification,” time for defendants to plead was extended by order of the Judge.

Again, on moving to set aside a default, defendants’ •counsel placed the motion on the ground that the documents and pleas for defence had been posted, but had not arrived.

This must be held to be a general appearance by the defendants to the suit commenced by the filing of the praecipe. The papers were on file and were notice to them, when they appeared, of the manner of commencing the suit. The fact stated by the attorney that he did not know that a summons had been issued and supposed the suit was commenced by attachment, does not alter the fact that the-files of the court afforded all the means of knowing the nature of the suit and of the process.

By appearing to the action the defendants placed themselves precisely in the situation in which they would have-stood had process been served upon them. Pollard vs. Dwight, 4 Cranch, 421; S. P., 3 Cr., 496 ; 8 Wheat., 699 ; Pearce vs. Thackeray, 13 Fla., 574 ; Smith vs. Bulkley, 15 Fla., 66.

The judgment dismissing the suit, and the order dissolving the writ of attachment, are reversed.