63 Fla. 508 | Fla. | 1912
— The appellant in March, 1911, filed his bill in the Circuit Court of Alachua County, against the appellee, stating therein substantially the same facts as are stated in his amended bill herein copied, but enlarging the prayer for process so as to name the defendant which, as is alleged was simply a clerical error in the first bill. The amended bill is as follows:
“Humbly complaining your orator, Marvin Malsby, doing business in the City of Jacksonville, Florida, as Malsby Machinery Company, brings this his amended bill of complaint against J. G. Gamble, of Alachua County,Florida, and thereupon your orator shows:
That on or about the 4th day of October, A. D. 1907, . your orator was engaged in the mercantile business in the city of Jacksonville, Florida, handling and selling ma•chinery of various kinds, and that your orator in the conduct and operation of Jiis said business, purchased considerable machinery from the A. B. Farquhar Company-Limited, a corporation under the laws of Pennsylvania, and doing business in the city of York, Pennsylvania.
Your orator would further show unto your Honor that
And your orator further showeth unto your Honor that said instrument was duly recorded on the Public Records of Alachua County, Florida, on the 9th day of December, 1907, in Book of Mis. Records No. 3, at pages 315 to 317, as appears endorsed upon said instrument. And further that there was an assignment of the instrument endorsed upon the back thereof, by A. B. Farquhar Company-Limited, to your orator on the 24th day of March, 1909, as appears endorsed upon said exhibit “A”, attached to the Original Bill of Complaint in this cause.
Yrour orator further showeth unto your Honor that the said note of $300.00 and the said note due on February 4th, 1908, were thereafter paid and the defendant given due credit for the same; but that the last two notes, to-wit: One note dated November 4th, 1907, due eight months after date for $366.66, and one note dated November 4th, 1907, due twelve months after date for $366.67, were not paid; but that each and both of said notes were duly assigned and endorsed by the said A. B. Farquhar Company-Limited, your orator, and delivered to your orator by the said A. B. Farquhar Company-Limited, and thereby the title to the said notes and the indebtedness represented thereby, became vested in your orator. And further that the said
That subsequently, to wit, on the 24th day of March, A. D. 1909, the said A. B. Farquhar Company-Limited executed and delivered in due form at law, and duly and legally acknowledged the same, an assignment of the said ■indebtedness and notes, of the said lease hereinbefore recited, and of all right, title and interest in the property ■hereinbefore described in this amended bill of complaint,
That there was a payment made on the note that was due June 4th, 1908, to-wit: — on January 20th, 1908, $117.62; that the balance of the said note and of the said note that was due on the 4th day of October, A. D. 1908, is long since past due, and the same has not been paid, or any part thereof; that on the 24th day of March, A. D. 1911, the said J. G. Gamble was indebted to the said complainant, Malsby Machinery Company, in the full sum of $804.17, upon said the said notes, for the purchase money of said property, — as will appear by a statement attached to the original bill of complaint in this cause and marked Exhibit “E” and prayed to be made a part of this Amended Bill of Complaint and referred to as may •be necessary or required.
Your orator further showeth unto your Honor that after the maturity of the said notes, and after the endorsement thereof and after the assignment of the lease and of the said property to your orator by the said A. B. Farquhar Company-Limited, your orator instituted a suit in replevin in the Circuit Court for Alachua County, Florida, to-wit: on the 14th day of April, A. D. 1909, against the ■said J. G. Gamble, which resulted in a judgment of non-
Your orator further represents unto your Honor that the Lease herein referred to and attached to your orator’s original Bill of Complaint and marked Exhibit “A”, and prayed to be made a part of this your orator’s Amended Bill of Complaint, contained the following clause, to-wit: — “It is further understood and agreed that the foregoing lease contains the only terms, conditions and contract upon which the property described above is delivered to the lessee, and- that the same cannot be varied, altered or controlled except by, agreement in writing, signed by both parties hereto.” And your orator would show unto your Honor that said clause' so contained in said lease reserved the title to the said property in the said A. B. Farquhar Company-Limited, without the right or power in the said A. B. Farquhar Company-Limited to assign the same, and that although the said A. B. Farquhar Company-Limited transferred, assigned and conveyed the said property described in said lease to your orator, the said assignment and transfer was null and void and conveyed no interest in said property to your orator, nor any right to the possession thereof, and therefore your orator was without any remedy by Writ of Replevin to recover the possession of said property; that although your orator was without any title to said property by said transfer
That thereafter a Writ of Error was sued out in the Supreme 'Court of the State of Florida, to the Circuit Court of Alachua County, Florida, and on the 6th day of February, A. D. 1911, the said Judgment of the Circuit Court was affirmed, and the mandate of the Supreme Court was filed in the office of the Clerk of the Circuit Court for Alachua County, Florida, on the..................day of March, A. D, 1911; that in and by said judgment the said property was awarded to the said J. G. Gamble, and he has, under the law, the right of election to enforce the money judgment for $1,400.00 and costs, against your orator; that the said J. G. Gamble has elected to enforce the said money judgment against your orator and has applied for, and sued out an execution upon the said judgment,— said execution having issued on the 16th day of June, A. D. 1910, and is now in the hands of the sheriff for purpose of enforcement, and the same will be levied upon the property of your orator at once for the enforcement of the judgment and execution.
Your orator further showeth unto your Honor that he hath not-an adequate' remedy at law, and cannot set-off the said notes against the said judgment, and cannot obtain judgment upon the said notes before his property shall have been seized and sold; that he is justly and legally entitled to collect the said notes from the said J. G. Gamble, the same having been endorsed and assigned by
Your orator further alleges that he is ready and willing to pay the balance of the said judgment in excess of the amount of the said notes held by him against the said J. G. Gamble, and herewith tenders the amount of said excess, being the sum of $514.42, into the registry of the court, as per said tender made by your orator in his said original Bill of Complaint, to be applied upon the said judgment and in satisfaction thereof, after allowing the set-off of the said notes and attorney’s fees provided for therein.
And further that your orator has instituted a suit at law against the said J. G. Gamble, upon the said notes, and expects to recover therein the sum of $884.58 damages and attorney’s fees, together with the interest that shall accrue thereon between now and the time when he shall obtain a judgment at law upon the said notes against the said J. G. Gamble.
And your orator further alleges and charges that the said J. G. Gamble is insolvent, and has no property situated in Alachua County, Florida, that he has been able to find, after having made diligent search, that is' subject to
Your orator further alleges that it is necessary that an injunction issue to prevent the defendant, J. G. Gamble, and his attorneys from levying upon your orator’s property under the said execution, and to stay all proceedings in said suit until orator can reduce his said notes to judgment, and set-off the same against the said judgment and execution in favor of the said J. G. Gamble and against your orator in the Circuit' Court of Alachua County, Florida.
Your orator therefore prays:—
First — That a temporary injunction do issue at once and without notice, restraining and enjoining the said defendant, J. G. Gamble, his agents and attorneys, from levying upon or seizing any of the property of your orator, Marvin Malsby, trading as Malsby Machinery Company, under the execution issued out of the Circuit Court of Alachua County, Florida, in favor of the said J. G. Gamble, and against the said Marvin Malsby,' doing business under the firm name of Malsby Machinery Company, which said execution issued on the 16th day of June, A. D. 1910, and from proceeding or taking any steps in the enforcement of the judgment and execution in said cause until the further order of this court.
Secondly: That an account may be had and taken by and under the direction and .decree of this Honorable Court, as to the truth of the allegations of this bill, and that a decree be rendered herein authorizing and permitting the complainant ..tp. sefioff whatever .amount shall ..be
Third: That the injunction issued herein may be made perpetual..
Fourth: That it may please your Honor to grant unto your orator, Marvin Malsby, doing business in the City of Jacksonville, Florida, as Malsby Machinery Company, the State’s most gracious Writ of Subpoena, directed to the said defendant, J. G. Gamble, therein and thereby requiring him at a certain time, and under a certain penalty to be therein named and limited, to be and appear before this Honorable Court, and then and there full, true, direct and perfect answer make to all and singular the premises; and further to stand to, perform, and abide by such other and further order and decree herein and may seem agreeable to equity and good conscience, and as the circumstances of the case may justify and warrant.
Fifth: And may it please your Honor to grant unto your orator such other and further relief herein as may seem agreeable to equity and good conscience, and as the circumstances of the case may ustify and warrant.
And your orator will ever pray, etc.
Marvin Malsby, Orator.
W. S. Broome,
Hampton & Hampton, Solicitors for Orator.”
When the amended bill was filed the Circuit Judge was applied to for a reinstatement of the injunction, which was denied. An appeal was taken from the order sustaining the demurrer to the original bill and dissolving the injunction, and from the order denying the application for a reinstatement of the injunction.. These rulings afford the grounds for the assignments of error presented here.
The notes given by Gamble to the A. B. Farquhar Company and the so-called lease of the machinery executed by the latter to the former are made exhibits to and parts of the bill and amended bill, but we think it unnecessary to set them out here as they are in substance set forth in the case of Malsby v. Gamble, 61 Fla. 310, 54 South. Rep. 766. The demurrer to the original bill which was sustained by the court contains thirteen grounds. The first ground is that there is no equity in the bill. The second ground is that there is a lack of necessary parties. The third ground is that the prayer for process fails to name the defendant. The seventh ground is that the allegations of the insolvency of Gamble is not alleged with so positive and direct a manner as to justify the relief sought, or any relief; and it may possibly be inferred the question was raised that Malsby by electing to bring the action of replevin dealt with in the cited case, debarred himself from bringing this suit.
The other grounds of demurrer did not reach the equity of the case in so apparent a way as to require us to examine them specifically, particularly as the appellee has filed no brief in the case, and we are not informed particularly
We think it is clearly apparent from the decision in the cited case of Malsby v. Gamble, supra, that in bringing the action of replevin Malsby mistook his remedy, and in such a case the doctrine of election of remedies does not apply. Hays v. Weeks, 57 Fla. 73, 48 South. Rep. 997; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 South. Rep. 942.
The allegation of the insolvency of Gamble in our opinion under the peculiar circumstances of this case, at least states such a prima facie case as to withstand a demurrer. There is a positive allegation of insolvency, which if denied, would have to be sustained by proof. As to the ground that there was a lack of necessary parties, we can discover from the record no basis for it, and in the oral argument presented none was referred to. As to the main question that there is no equity in the bill it seems to us that it abounds in equity. From its allegations it appears that Gamble bought the personal property mentioned from the A. B. Farquhar Company; that he still owes a considerable part of the purchase money, represented by notes which .were assigned and endorsed to the complainant; that he has a judgment against the complainant for $1400.00 and costs obtained in the replevin suit which through a mistake in his remedy, was brought by the complainant against Gamble; that Gamble has sued .out an execution on- this, judgment, and that prima facie- at least he is’insolvent. ..' Complainant has sued-'on the notes .'.and prays- that he .may., be- allowed to-¡off-set
We cannot say that the Circuit Judge erred in sustaining the demurrer to the original bill, as it is plain that the prayer was defective in not naming the defendant. But this defect was removed by the amended bill, and we think the Circuit Judge erred in not reinstating the injunction when requested so to do after the filing of the amended bill. His ruling on this point is reversed, and the cause remanded.
