Tilton v. Horton , 103 Fla. 497 ( 1931 )

The only question passed upon in our former decision (rendered November 13, 1931) in this cause was whether or not the trial court committed error in overruling a demurrer of plaintiff to defendant's plea of res judicata.

In the first part of the opinion we stated that "if the trial court committed reversible error in his judgment on the demurrer that it would be unnecessary to consider the cross-assignments filed by defendant in error" or as to "whether or not a cross-writ of error by a defendant lies to a final judgment at law in his favor." It will be noted that the motion for rehearing in quoting from our former opinion, as a basis for said motion, used the word "necessary" instead ofunnecessary as it appears in the opinion.

This court has recently held that "cross-assignments of error by a defendant in error in a common law case are not authorized by any statute or rule of court in this jurisdiction" and "consequently such cross-assignments of error cannot be considered." Zigler v. Erler Corporation 102 Fla. 981,136 So.2d 718; Wilder v. Punta Gorda State Bank, 100 Fla. 517,129 So.2d 865. It was also said in the first cited case that 'there is nothing in our practice which precludes the defendant in error in a common law case from himself suing out a writ of error tothe same judgment or appealable order, as that from which his adversary has taken a writ of error, thereby enabling the defendant in error by means of his cross-writ of error, and assignments of error based thereon, to obtain the same relief as appellees in chancery are able to obtain by means of cross-assignments of error without a cross-appeal;" also held that "a party may bring a writ of error to reverse his own judgment for error". The rule is also stated in 3 C. J. 352, Section 106, that "At common law, however, where one party sues out a writ of error this does not prevent defendant in error from also suing out such a writ to review errors complained of by him."

It is observed that the defendant's praecipe for cross-writ of error states that it is sued out from the final judgment in this cause and that 'no assignment of error is assigned by defendant as to said final judgment" and that "all assignments of error by the defendant are addressed to adverse interlocutory orders rendered on April 22, 1929," and "on May 2, 1929."

It appears therefore that defendant in error was entitled to have his assignments of error adjudicated on this appeal. While the case of Zigler v. Erler Corporation, supra, was not before the writer of the former opinion when it was being prepared we have no hesitancy in conceding that a cross-writ of error was applicable for a review of his adverse ruling on demurrer; in fact, the result of the proceeding is equivalent to suing out a separate writ of error by the defendant Horton, which may for convenience be included in the same transcript as that of plaintiff in error.

We will now consider the questions raised by the cross-assignments of error as to whether the trial court committed error in overruling defendant Horton's demurrer to plaintiff's replication to defendant's special pleas to the declaration on the notes in question.

An examination of said special pleas of defendant will show that they set up in substance the same matters of defense to the instant suit as was set up in his bill for a cancellation of the same notes constituting the cause of action here; and to these special pleas plaintiff, in his replication to those pleas, set up in substance that the same matters and issues had already been passed upon in the former chancery suit wherein the trial court after hearing the testimony dismissed the bill with prejudice to complainant.

It is our conclusion that the replication of plaintiff addressed to the pleas shows that in substance and effect that the merits of the same issues and facts relied upon have been passed upon and formerly adjudicated, by a court of competent jurisdiction, therefore the trial court committed no reversible error in overruling the demurrer to plaintiff's replication. See 15 R. C. L. 993, Sec. 468.

We therefore hold that the substance of the matter set up in defendant's pleas have been adjudicated on its merits as shown by the former order and decree dismissing Horton's bill with prejudice; also, we hold (as shown by our former decision) that the proceedings in the chancery suit show that Tilton was not precluded, by reason of the former dismissal of the proceedings in chancery, from bringing suit on his notes.

Having thus reviewed our former decision and again reviewed the briefs and arguments of counsel addressed to the question involved in the order of the court in overruling the defendant's demurrer to plaintiff's replication, no useful purpose could be subserved by a reargument of matters which have already been very ably argued and covered; therefore, the motion for a formal rehearing should be and is hereby denied.