Pollak v. Hutchinson

21 Fla. 128 | Fla. | 1884

The Chiee-Justice

delivered the opinion of the court:

Poliak & Co. sued Hutchinson and O’Hara as partners upon an account for goods, &c.

Judgment by default was taken against O’Hara, and Hutchinson pleaded several pleas.

Plaintiff demurred to some of the pleas and as to a portion of them the demurrers were overruled. Plaintiff -also moved to strike out pleas and also that defendant be required to elect which pleas he would rely upon, on the ground that the several pleas which had been sustained by the court were inconsistent or contradictory with eacbi other, which motions were overruled. The court also suppressed a deposition of a witness for. plaintiff. These several rulings were in writing and signed by the Judge.

■; • The parties proceeded to trial, and verdict and judgment : were rendered in favor of Hutchinson. Plaintiff then had Han inquest as against O’Hara and had verdict and judgment :against him for the claim sued on, and now appeals from ' the judgment in favor of Hutchinson. The errors assigned relate to the rulings upon the pleadings and the suppression of the deposition.

There is no bill of exceptious bringing up the testimony or the deposition so excluded, or exceptions taken at the trial or the charge to the jury. Ho pleading of the plaintiff was overruled or stricken out except his demurrer to pleas. He appeals for the purpose of obtaining a new trial.

We cannot see how the plaintiff was injured by any ruling upon defendant’s pleas, because it does not appear that •defendant gave any testimony under the pleas complained •of. However bad the pleas may have been, and however •erroneous the ruling may have been, yet the plaintiff was not prejudiced by them unless the defendant offered testimony which was admitted by the court under such pleas. ■For aught that appears the verdict may have been given by reason of the plaintiff’s failure to prove his cause of action.. There is no bill of exceptions.here showing what he proved or offered to prove at the trial. We .do not know what the suppressed deposition contained, for it is not brought here by bill of exceptions, and we cannot therefore examine it to see .whether it was improperly excluded.

The record, therefore, does not disclose how the plaintiff has been injured or,prejudiced by the-,supposed, erroneous •rulings of the court, The precise .question was. decided in Walter vs. The Fla. Sav. Bank, &c., at this term.

But even if there were errors apparent in the record for which the judgment might be reversed, what would it avail the -plaintiff as this case stands ? He has taken his final judgment against O’Hara, one of the partners defendant. And the rule is well settled that the plaintiff cannot have two judgments upon the same cause of action, in the same suit, as against two partners or joint debtors.

See Freeman on Judgments, Second Ed., §§231, 232, 234, 235, and the numerous authorities cited.

The judgment is affirmed.