28 Fla. 191 | Fla. | 1891
On the 22nd day of March, 1888, the firm composed of II. A. Steinwender, A. C. Sellner and G. A. Steinwender, doing business under the firm name of Steinwender, & Sellner, instituted their action in assumpsit, upon an account for goods sold, etc., in the Circuit Court of Duval county, against William H. Hellen and George E. Acosta, as partners, doing business under the firm name of Helen & Acosta. Summons ad respondendum was issued March 22, 1888, returnable to the rule day in April, 1888, and the following return was made thereon by the sheriff: “Received this summons March 22, 1888, and served the same March 22, 1888, by delivering a true copy thereof in the county of Duval to the within named defendant Wil
At the hearing of this motion before the Judge of the Third Circuit, a demurrer and various pleas, affidavits .and other exhibits copied into the record here, purport to have been presented to the judge in support of, and in resistance to, the motion. These exhibits cannot be considered by this court because the fact that they were formally presented to and considered by the court below in connection with said motion is not evidenced to this court by any bill of exceptions, or in any other manner recognized by our statutes or practice. In Broward vs. State, 9 Fla., 422, the court says : “The proper way to get facts before an appellate court, in such form as to render them evidence, is to make a statement of them in the shape of a bill of exceptions, and then get the Circuit Judge to sign and seal it, and order it.to be made part of the record.” There must be something, either a formal bill of exceptions, or that which is tantamount thereto evidencing the fact that such papers were considered on the hearing of the motion, before we could'consider them on writ of error. Carter vs. State, 20 Fla., 754.
The declaration in this case is as follows : “H. A. Steinwender, A. C. Sellner and G. A. Steinwender, co-partners, doing business under the firm name and style of Steinwender & Sellner, by their attorneys, A. W. Cockrell & Son, sue William H. Hellen and (ieorge F. Acosta, copartners, doing business under the firm name
2. And for a second count the plaintiffs allege by this reference to all heretofore alleged, excepting the last paragraph next above, and further allege, and the defendants then and there promised to pay the plaintiffs the sum of $852.32, but nevertheless the defendants wholly failed to pay the plaintiffs said sum or any part thereof, and still doth refuse so to do, and the defendants have wholly failed to pay the plaintiffs the value of said goods or any part thereof, and the plaintiffs claim fifteen hundred dollars.
3. And for a third count the plaintiffs sue-the de-' fendants for this, to-wit: The defendants promised to pay the plaintiffs for certain goods, wares and merchandise, set forth in detail in the bill of particulars hereto attached as a part hereof, sold and delivered by the plaintiffs to the defendants as much as the said goods were reasonably worth, and the same were then and there reasonably worth the sum of $852.32, of which the defendants had notice, and being so indebted, the defendants in consideration thereof promised to
4. And for a fourth count, the plaintiffs sue the defendants for $852.32, money due and payable by the defendants to the plaintiffs on account stated between them, and plaintiffs claims $1,500.
5. And for a fifth count, the plaintiffs sue the defendants for $852.32, money due and payable by the defendants to the plaintiffs, for goods bargained and sold by the plaintiffs to the defendants, and plaintiffs claim $1,500.”'
O. And for a sixth count, the plaintiffs sue the defendants for $852.32, money due and payable by the defendants to the plaintiffs, for money had and received by the defendants to the use of the plaintiffs, and plaintiffs claim $1,590.”
To this declaration there is attached as a part thereof an itemized account for various goods aggregating $852.32, which account is made out against “Hellen & Acosta,” without stating the individual names of the parties composing said firm. After the entry of the del fault for want of appearance, the following affidavit with the following account appended was filed with the Clerk of the Circuit Court, upon which he entered the final judgment appealed from :
*205 “Messrs. Hellen & Acosta,
Jacksonville, Fla.,
To STEIN WEN HER & SELLNER, Dr.
5 Brls. Old Oscar Pepper Bourbon, Spr. ’83, 193.80, per galls. $2.40.....................$465.12
2 Cases Pomeroy.Sec. Champ., quarts, 25.50... 59.00
2 “ “ “ “ pints, 31.50... 63.00
2 “ FenveCliquot “ quarts, 29.25... 58.50
2 “ “ “ “ pints, 31.25... 62.50
2 “ Dry Monopole “ quarts, 28.30... 56.60
2 “ “ “ “ pints, 30.30... 60.60
1, “ Planot & Co. Cognac, 1840............ 26.00
Dray........ 1.00
8852.32
State of Missouri, )
V ss.
City of St. Louis.-)
Before me, the undersigned, a Notary Public in and for the city and State aforesaid, duly commissioned and qualified for a term expiring June 29, 1889, personally appeared on this fourteenth day of if ay, A. D. eighteen hundred and eighty-eight, A. C. Sellner, of lawful age, to me known, who being by me duly sworn, on his oath deposes and says that he is a member of the firm of Steinwender & Sellner, the within named claimants, (said firm being composed of Herman A. Steimvender, Crustavus A. Steinwender and
Kworn to and subscribed before me this 14th day of May, 1888.
Witness mv hand and Notarial seal.
J- A C. Kellner ”
[Keal.j August Ahrens,
Notary Public City of St. Louis, Missouri.
The errors assigned are as follows : “ 1st. The court erred in entering the default'in this case; 2nd. The court erred in rendering' and entering a final judgment in this case; 3rd. The court erred in overruling the motion of the plaintiffs in error to open the default and set aside the judgment herein.” And counsel for plaintiffs in error urges the second assignment on the ground “that the proof does not pretend to show the delivery to the defendants, or to anyone for them; nor does it pretend to show that they derived any benefit therefrom.”
We think the second error assigned is well taken. The plaintiffs in the first count of their declaration
The judgment of the court below is reversed.