*1 mg' patrons energy with making electric charge there- city, for in said the said service not involving use of public streets public property city. or other On (cid:127)application appellee the said temporary restraining or- der was dissolved and the bill Appeal dismissed. ’taken from that order. On application an for supersedeas fully submitted, cause was the record and briefs have (ind examined, been hereby of the chancellor is decree (cid:127)affirmed.
Affirmed.
Terrell, J.,C. and Whitfield, Ellis, Strum and J., Buford, J. concur.
W. E. Wilder and A. T. Gore, Appellants, v. Punta
Gorda a Corporation; and E. O. Painter Bank, State Fertilizer Corporation, Company, Appellee.
Opinion August filed 2, 1930.
518
W, Bell, D. Appellants; Leitner, Leitner for Appellees. & Davis, Commissioner:
This is the second time that we have been called A will be consider this case. statement facts found was here in a of this Court when the case on decision Wilder, Punta State Bank v. appeal. See Gorda former 301, 93 Fla. So. R. 569. assigned (1) error: The enter- appellants have (2) T. decree, Overruling of A.
ing'of the final demurrer complaint, (3) Overruling demurrer Gore to the bill of Sustaining (4) complaint, W. E. Wilder to the bill T. part of the answer of A. a motion to strike Gore. assignment been abandoned The last has appellants. 4685-6, (Yol. page Comp. Gen.
Special Equity
Rule
following provision:
1927)
Florida,
Laws of
contains
any ruling
“If
desires
have
made
appellee
against
him
he shall within
reviewed
such appeal,
prescribed
filing
time
these rulés for
his addi-
directions,
a complete assignment
tional
file
of all the
rely upon
errors he intends
* *
appellate
appellee
*. If the
file
fails to
and serve cross-
assignments of
provided,
parties
errors as herein
will be confined
hearing
on the
to the consideration of
assignments
by appellant.”
error filed
*3
When
before,
this case was here
upon
was
an appeal
a
from decree dismissing
complaint
the bill of
after a hear-
ing upon
Appellees,
its merits.
including W. E. Wilder
n andA. T.
(the
present appellants)
Gore
did not at that
assign
ruling
time
error
as
lower court overrul-
ing the
Gore,
demurrers of
E.
and
W. Wilder
A. T.
as
right
a
had
do
under
rule that we have referred to.
adjudicated
It is
all points
by
settled here that
ap
an
pellate
upon
court
a writ of
or
an
upon
appeal
error
be
come the
longer
law
the case and
no
open
are
to dis
cussion or consideration. Florida East Coast R. Co. v.
582,
Geiger, 66 Fla.
64
R. 238; Christopher v. Mungen,
So.
467,
923;
66 Fla.
63 So.
66
Ulmer,
R.
First Nat. Bank v.
68, 63
R. 145;
Fla.
So.
A. R. Harper Piano
v.Co. Seaboard
65
Ry.,
490,
Air Line
Fla.
62
R. 482;
So.
McKinnon v.
Johnson,
120,
910;
57 Fla.
48 So. R.
v. State,
Sanders
82
498, 90
R.
Fla.
So.
455. But we have also held that this
principle
applicability
has no
to, and
of,
is not decisive
points presented upon a second writ of error that
not
were
presented upon the former
error
consequently
writ of
were not before the appellate
adjudication.
for
court
Flor
ida
Geiger,
East Coast R.
v.
supra; Hillsborough
Co.
Grocery
Leman,
Co. v.
It is in effect contended appellants that the reversal upon of this cause former appeal adjudica- an any other than those in terms discussed tion questiqn question appeal any other decided have, may argument assigned error. This would great weight if because the case were here on writ of we or rule court or have no statute that authorizes cross-assignments filing permits consideration actions; and were to hold errors in common-law we by. plaintiff a reversal of on writ of sued out error judgment at law estop would thereafter from defendant ruling on propriety of a a demurrer to the questioning the up bring out him to by writ of sued declaration judgment; deprived of an he would be for review adverse have the of the decision of correctness opportunity However, passed.upon court this Court. the lower causes, parties in are chancery the court below successful rulings pleadings on or other permitted to have adverse interlocutory from final appeal matters reviewed by assigning rulings favorable error. decree to them *4 litigation ter- requires should be good public accomplished if it can be possible, speedily minated as any rights litigants; of of.the the jeopardizing without adopt Court above impelled the to doubtless this idea Rule Special Equity 4. quoted provision of Georgia, provision was in the of there a In the State Code, as follows: Civil upon Supreme Court carried to the cause shall.be
“No pending long as the same is any exceptions, so of bill judgment or below, unless the decision in court by of, rendered as claimed if it had been complained disposi- have been a final error, would plaintiff party material cause, or final as to tion of the some stage party either but, any cause, thereto; at may any decision, or de- exceptions his sentence file superior if certified courts; and the same is cree of the allowed, it shall be entered cause; of record in the and should the case final at its determination be car- by ried writ of error to the Supreme Court either party, may assigned error upon excep- such bill of reversal tions, may and new trial be allowed thereon, when it is manifest that such erroneous de- may cision of court has or have affected the final result of the 5526, case.” Section Georgiá, Code of 1895. construing
In provision, Supreme Court of Georgia, Hodgkins in the of case v. Marshall, 102 191, Ga. 177, 174, 29 So. E. R. text held: prosecuted “That each of error writ to this court brings under all errors review alleged law to have prior been committed to the time it issued, and, if party filing exceptions pendente lite is the de- fendant should, first writ he either cross bill of or exceptions record in this court, assign pendente his exceptions lite, or he will be thereafter held have waived them. This state- logic ment is the (Story the decision Brown, v. for, Ga. E. 582), may So. R. while court give concerning direction matters over which it has jurisdiction virtue of a of error out writ sued to the judgment give final lower it could not di- touching a juris- rection matter over no had ; if, by diction means of the writ of error out sued judgment, final acquire juris- it did likewise previous interlocutory exceptions, diction all then *5 jurisdiction give it would without be to direction touch- ing exceptions; and it could not be that a held party subsequent prosecu- would be from the barred lite, exceptions pendente of his held tion unless it was of writ of, a the part to, attached become ' allowance. out their error first sued after only not to show have far endeavored thus “We in conflict with none of decisions of this court are the are take, previous deliverances the we but that view its express. Not in view which we now accord with the quoted' only above a the Code is construction the upon commends one, it is one which itself natural but policy. public of a That there- sound consideration litigation, and that time an end to should at some causes, to litigants encouraged speed their should be of' administration important are considerations Any one justice. other than the we public rule indefinitely protract to liti- lay might tend now down example illustrate one endeavor gation. We will arise, ex- might arisen, and doubtless has which A profession. many legal members perience demurrer general plaintiff brings an action to which prosecute overruled. The defendant elects an is ‘interlocutory’ pen- exceptions writ of but files upon He wins his case the trial dente lite. before the jury. plaintiff trial, moves for which new is- prosecutes He of error to writ this overruled. then and, hearing here, judgment upon the is re- Upon cause is remanded. another trial it versed. The again in results favor The same defendant. process repeated. again Upon is It is remanded. the- plaintiff Thereupon next trial the wins his case. the- overruled, for a new being defendant moves trial, prosecutes he his writ error to In court. assigns he exceptions writ of error pendente judgment filed in first lite instance overruling plaintiff’s declaration, demurrer to his the third writ error to court it solemnly adjudicated plaintiff that the did not ever at *6 any time against have a cause action the defendant. The immense amount of energy necessary nervous be expended in protracted the numerous and trials of tedious, this long-drawn litigation is wasted, and all goes for naught finally when it is determined that the defendant was entitled the first instance to have had plaintiff’s the action on dismissed demurrer. ‘‘These lead considerations us to the conclusion that, whenever writ of error judgment, is filed to final it to' should draw assignments itself all of error which had previously been case, in the reserved to the end that questions the vexed litiga- which in the course arise ’’ may tion be speedily possible. settled as as We find much to Georgia commend in what the Court said, has can see no why logic reason its should not be invoked in this ease. AVetherefore hold that when brought cause first appellees was here, failing present Court for rulings review properly the lower court on the to the complaint, demurrers bill of right waived the to thereafter assign rulings as error. Taking up now the first assignment of we have question us as to before no the sufficiency of the bill complaint. Upon the former appeal, Court found supports allegations evidence of the bill notes”) (“Glass fraudulently “the notes were transferred judgment and defraud creditors;” to defeat and further ‘‘ necessary complainant It to exhaust legal remedies and have a return of lana’ ‘nulla ’’ equity; execution before could maintain its bill in “with the decree was reversed directions for such Uxrther the views may had not proceedings inconsistent with expressed opinion.” in this law of case; as it decision, goes, so far
That of the notes one made that point is now but *7 were for the by appellant received from Shelfer Gore it" “Glass notes” possession; was not in his (Gore’s) had assigned by been him to one W. Coker before C. appellees bill in this advised filed, case was of whieh were answer; steps Gore’s and taken to- that no have been assignee make such a party litigation. to the There is. evidence the record this conten- support that tends to find, tion. We transcript' have referred and to the former this, question decided was not discussed and any appeal, ruling Court on the former nor was there lower court could be predicated which cross- assignment' raising of error it. decree from which ‘‘ the present appeal decrees the was taken finds and Shel- alleged fer note” is been to have transferred to Coker to of W. E. Wilder property Gore W. C. be the Wilder, and further appellants, decrees that the Gore and immediately deliver said note master of the to refusing upon failing up, and or to deliver and each that, contempt of held in of them shall be court and also hereby perpetually enjoined and the said Shelfer “be he is the said paying the said notes” to Wilder or the from said. any claiming through or or one under by, Gore them. ‘ ’’ ‘ If suit. since the institution of this Gore held the Shel-' to, agent apparent for with power fer notes as Wilder one them them and did transfer to Coker, prior transfer then bringing suit, right of this Coker has to the party was a same, he and collect unless received to, of, a scheme to defraud pursuance appellees- the note in upon the appellees is words, allege, In other the burden holds the note as a prove and that Coker fraudulent as- to, or signee allegations proof and transferee, binding upon he must be Coker, party made a Ency. P. suit. Pr. 543-4. as Coker
Inasumch party litigation, to this erred court lower finding decreeing that the note represented him is prop- to have been transferred to erty Wilder, erred in decreeing W. E. and also said Wilder and said Gore deliver said note to the master up, court failure and refusal to deliver it they and of them contempt each be held in of court. The enjoining paying court also erred in said from Shelfer any claiming said one or by, through note to said note *8 under said Gore or said Wilder since the commencement suit. this
The decree is reversed and cause is remanded with they directions if complainants, elect, that so be allowed thirty days to amend their going bill within from the down of the mandate failure to so amend' appealed that the decree from bill, changed said be so expressed. to conform to the views herein Curiam. —The record having cause been con- Per foregoing opinion sidered Court, prepared Chapter 14553, adopted under Acts of the Court opinion, is ordered considered, as its and decreed that the decree of the Court Court below should be, hereby, reversed, and the cause the same remanded with complainants, if elect, directions so be amend their thirty days allowed to bill within from going mandate, down of the and that upon failure to appealed amend said the decree from bill, so expressed as to conform to the views changed so in the Supreme Court opinion of cause. J., C. Strum and Bu-
Terrell, Whitfield, Ellis, J., J. concur. ford,