42 Fla. 86 | Fla. | 1900
' On December 10, 1896, the Indian River State Bank, a corporation, and Simon Hamberg, as plaintiffs, instituted suit in the Circuit Court of Brevard county, against the Liverpool and London and Globe Insurance Company, a corporation of Great Britain, doing business in Florida, upon a policy of fire insurance issued to said Hamberg. The declaration contained only one count, which sought to recover upon the policy, and with respect to the title of the plaintiffs to said policy it. is alleged that on December 13, 1895, after loss of the property insured by fire, Hamberg, for value received, by a written agreement endorsed on the pplicy pledged the same to and deposited it with the bank as security for certain debts and engagements of Hamberg to the bank, and that the policy had never been redelivered to Hamberg, but was in the custody and possession of the bank as pledge thereof to secure the payment of said debts and the performance of said engagement. The original policjr of insurance was filed as the cause of action sued upon. The defendant demurred to this declaration upon various grounds, the first being that
On January, 28, 1899, Simon Hamberg, for the use and benefit of the Indian River State Bank, moved the court to amend the final judgment previously entered
Thereafter plaintiff in error sued out a writ of error to this court, returnable to the present term, and defendant in error moves to dismiss the writ upon various grounds unnecessary to be set forth in detail, but several of which contend that the plaintiff in error having- voluntarily disappeared from the case in consequence of the last amendment of the declaration, and not being a party to the final judgment, cannot maintain the writ of error sued out by him. The court is of the opinion that this contention is correct, and that the writ of error must be dismissed.
The first declaration was filed by the Indian River State Bank and Simon Hamberg, the parties plaintiff named in the praecipe and writ, and these parties were given leave to amend as they might be advised. An amended declaration was filed in which Hamberg assumed the position of nominal, and the bank that of use, plaintiff. While the order granting leave to amend does not in express terms authorize an amendment as to parties, it is broad enough to cover such an amendment, an amendment of that character was clearly contemplated by the ruling on the demurrer, and the court and the parties in the subsequent proceedings recognized this amended pleading as properly in the record as will be seen from the foregoing statement of facts. The next amended declaration made no change
We are not prepared to say that a use plaintiff has not a right, even against the consent of the nominal plaintiff, to dismiss the suit, or to have the name of the nominal plaintiff stricken and his own substituted as sole plaintiff, but we do not go so far as to. announce that view in this case, because we are of opinion that there is'sufficient in this record to show that plaintiff in error impliedly consented to and acquiesced in the propriety of that amendment, and we hold that such amendment operated as an "abandonment of the suit so
There are ten other writs of error from the Circuit Courts of Brevard and Volusia counties pending in this court sued out by the same plaintiff in error, wherein the Sun Mutual Ins. Co., Providence Washington Ins. Co., Springfield Fire & Marine Ins. Co., Liverpool and London and Globe Ins. Co. Hartford Fire Ins. Co., Home Ins. Co., Continental Ins. Co., Glens Falls Ins. Co., Scottish Union and National Ins. Co. and Orient Ins. Co., respectively, are defendants in error, in which motions to dismiss are made. The suits in the court below, wherein judgments were rendered from which these writs of error were sued out, sought to recover upon fire insurance policies issued by the insurance companies respectively to Simon Hamberg. Like pleadings, amendments and proceedings were had in each of these cases as in the one just considered, and the same reasons which require the writ of error in the latter to be dismissed apply to each of the others. An order will, therefore, be entered in each of those cases granting the motion to dismiss the writ of error.