Volume 56 — Florida Reports

This -case was decided by the court En Banc. Writ of Error,to the -Circuit Court for Hernando County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Bane. Writ of Error to the Circuit Court for Wakulla County. The facts in the case are stated in the opinion of the court.

<p>1. Where there is no hint of another cause of death, an appellate court will not reverse for lack of proof on this point where it is proven that the person shot, suffered great agony and died two days thereafter, and a non-expert witness testified to the location of the wound and that the bullet went through the body.</p> <p>2. To require a critical examination of a court’s charge, it should be excepted to.</p> <p>3. A trial court exercises a judicial discretion in refusing to receive testimony, after the evidence is closed.</p> <p>4. During the progress of the trial, the defense asked that ■one Ananias Godwin be sworn and put under the rule, whereupon the judge smiled; 'Godwin was not made a witness nor does it appear what it was expected to prove by him. Held, no error.</p> <p>5. The evidence supported the verdict.</p>

This case was decided by Division B. Writ of Error to the Circuit Court for Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for Hernando County. The facts in the case are stated in the opinion of the court.

.This case was decided by Division A. ■ Writ of Error to the Criminal Court of Record for Orange County. , The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division B.</p> <p>Writ of Error to the Criminal Court of Record for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Writ of Error to fhe 'Circuit Court for Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. •Writ of Error to the Circuit Court for Walton County. . The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error tp the Circuit Court for Levy County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>■ Writ of Error to the Circuit Court for Taylor County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division B. Writ of Error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of. the court.

This case was decided by Division B. Writ of Error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. ■ Writ of Error to- the Circuit Court for Taylor County. The facts in the case are stated in the opinion of tht court.

This case was decided by the court En Banc. Writ of Error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error to' the Circuit Court for Hernando County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of Error to the Circuit Court for Hamilton County. The facts in the case are stated in the opinion of the court.

<p>1. A set-off is allowed in an action on contract, only of matters growing out of contract. Damages sustained by reason of annoying suits, malicious prosecutions, slander of title, injury to one’s credit occasioned by such proceedings, though relating to the subject matter of plaintiff’s suit, cannot be set off.</p> <p>■2. In an action on contract, a plea of set off of damages arising out of tort is plainly frivolous and properly treated as a nullity and stricken on motion.</p> <p>3. When the defendant’s sole plea was properly stricken as frivolous and irrelevant, he was in default, and, as he did not ask leave to file a new plea, the court was authorized to enter judgment by default against him.</p>

<p>This case was decided by Division B.</p> <p>Writ of Error to' the Circuit Court for Santa Rosa County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by the court En Banc. Writ of Error to the Circuit Court for Leon County. Statement.

This case was decided by Division B. Writ of Error to the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of Error to' the Circuit Court for Columbia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of Error to the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for DeSoto County. The facts in the case are stated in. the opinion of the court.

<p>This case was decided by Division B.</p> <p>Writ of Error to the Circuit Court for Duval County.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

<p>This case was decide'd by Division B.</p> <p>Writ of Error to the Circuit Court for Walton County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case w'as decided by the Court En Banc. Writ of Error to the Circuit Court for Polk County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of Error to the Circuit Court fob Dade County. * * I The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of Error to the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of Error to the Circuit Court for Gadsden County. - The facts of the case are stated in the opinion of the court.

<p>This case w'as decided by Division B.</p> <p>. Writ of Error to -the Circuit Court for Taylor County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division B. Writ of error to the Circuit Court for Taylor County. The facts in the case arle stated in the opinion of the court.

<p>Amending Declaration After Verdict — Reiterating Charges.</p> <p>1. There is no error in permitting the plaintiff to amend his declaration by the addition thereto of an ad damnum clause, after Verdict but before entry of judgment.</p> <p>2. It is not error to refuse to give a requested instruction when the substance thereof has already been given in charge.</p>

This case was decided by Division A. Writ of Error to the Circuit Court for Volusia County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the Court En Banc.</p> <p>Writ of Error to the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by the Court En Banc. Writ of Error to the Circuit Court for Hillsborough County. The fact's in the case are stated in the opinion of the count.

This case was decided by Division B. Writ of Error to- the Circuit Court for Dee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of Error to the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case was decided by the Court En Banc. Writ of Error to the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court. . . !

This case was decided 'by Division A. Writ of Errtxr to the Circuit Court for Dade County. Statement. On the 26th day-of October, 1905, the plaintiff in error brought an action against the defendant in error in the Circuit Court for Dade County, seeking to recover damages for personal injuries received by the plaintiff by reason of the alleged negligence of the'defendant.

This case was decided by Division B. ' Writ of Error 'bo the Circuit Court for Aladb.ua County. The facts in the case are stated in the opinion of the court..

This case -was decided by Division. A. Writ of Error to the Circuit Count for D'ade County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>Writ of Error to the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This -case was decided by Division A. Writ'of Error to the Circuit Count for Miarion County. The facts in the case are stated in .the. opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for Escambia Counity. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division B.</p> <p>Writ of Error to die Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

This case was decided by Division A. Writ of- Error to the Circuit Court for Diuval- county. The facts in the case are stated in the opinion of the court.

This case was decided by the Gourt En Banc. Writ of Error to the Circuit Court for Walton county. Statement.

This case was decided by Division B. Writ of Error to the Circuit Court for Hillsborough county. The facts in the case are stated in the opinion'of the court.

<p>In order for the appellate court upon writ of error to review the sufficiency of the evidence to sustain the verdict or finding a motion for a new trial upon that ground should be duly presented to and acted upon by the trial court which motion and the order made thereon and the exception taken should be evidenced to the appellate court by a proper bill of exceptions; and the facts that the trial was by the judge without a jury, and that the'finding and judgment were excepted to, do not dispense with the necessity for a motion for new trial.</p>

<p>This case was decided by Division B.</p> <p>Writ of Error to the Circuit Court for Orange County.</p> <p>The facts in the case are stated in the opinion of the ' court.</p>

This case was decided by Division B. Writ of Error to the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for 'Hillsborough County. The facts in the case are stated in the opinion of the court.

<p>1. A corporate entity has only such rights and powers as are conferred upon it by express or implied provisions of law.</p> <p>2. When not prohibited by law corporations have the implied power to make contracts that are fairly within the scope of the purposes of their creation.</p> <p>3. When a contract made by a private corporation is not forbidden by law and has some relation to the business the corporation is authorized to do, such contract may not be repudiated at pleasure to the injury of one who in good faith dealt with the corporation under circumstances indicating the authority of the' corporation.</p> <p>4. While those dealing with a private corporation are charged with some degree of care to ascertain the powers of the corporation with reference to the transaction, yet if the transaction has some fair relation to the matters within the corporate authority, the defense of ultra vires will not in general be available to afford injustice or imposition.</p> <p>5. When a corporation having authority to do a general commission and mercantile business, to own, lease and operate' turpentine farms, to lease and sublet and buy and sell timber for turpentine and milling purposes, and to buy and hold such real estate as may be necessary for or incidental to the authorized business, and an action is brought against the corporation for commissions for finding a purchaser for lands, and to a plea of ultra vires that the corporation did not have authority to make the contract and was not at any time seized and possessed of the lands to which the contract of sale relates and had no interest directly or indirectly in the lands, a demurrer was filed, and a replication to the plea alleges that the defendant corporation claimed and represented itself to be the owner of the lands, employed plaintiffs and received the benefit thereof and sold or caused to be sold the identical lands through another for a greater profit, which replication is demurred to, the defense of ultra vires cannot avail the defendant.</p>

This case wias decided by Division A. Writ of Error to the Circuit Court for St. Johns County. The facts in the case are stated in- the opinion of the court.

This case was decided by Division A. Writ of Error to’ the Circuit Court of Taylor County. The facts in the case are stated in tire opinion, of the court.

This case was decided by Division B. Writ of Error to the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the Court En Banc.</p> <p>Writ of Error tO'the Circuit Court for Orange County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Writ of error bo. the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case was decided, by Division B. Writ of Error to the Circuit Court for Santa Rosa County. The facts in the case are stated in the opinion of the court.

This case was decided by Division. A. Writ of Error to the Circuit Court for Jefferson County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>Writ of Error to the Circuit Court for Jackson Oounity.</p> <p>j</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Writ of Error to the Circuit Gojirt for Santa Rosa County. The facts in the case are stated in the- opinion of the court.

This case was decided by Division A. Writ of Error to-the 'Circuit Court for Volusia County. The facts in the case are stated -in the opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for Santa Rosa County. Statement.

<p>1. A failure to comply strictly with those provisions of tax laws which are intended for the guide of officers in the conduct of business devolved upon them, designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected, will not usually render the proceeding void; but where the requisites prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and a disregard of them might and generally would injuriously affect his rights, they cannot be disregarded, and failure to comply with them will render the proceeding invalid.</p> <p>2. The provision of the statute requiring the Clerk of the Circuit Court to mail a copy of the notice of application for a tax deed to the owner of the land, or if the o.wner be unknown to deliver or mail such copy to the person last paying taxes on the property was intended for the benefit of the land owner, and a disregard of the provision when applicable renders the tax deed invalid.</p> <p>3. The validity of a tax sale certificate and the rights of the holder thereof, .other than a governmental agency of the State, are to be determined by the laws in force at the time the certificate is acquired. A statute subsequently passed cannot constitutionally impair any of the substantial rights secured to a private holder by the existing laws when the certificate was acquired.</p> <p>4. A statute enacted after the acquisition by a private party of a tax sale certificate, requiring a particular and additional notice to be'given to the owner of the land before a deed issues on the certificate, when the right to a deed had not become absolute and the giving of the notice imposes no burden upon the holder of the certificate, may not impair any substantial right of the holder of the certificate, and consequently may not be an impairment of vested property rights or a deprivation of property without due' process of law.</p> <p>5. A charge directing a verdict for the defendants should never be given unless it is clear that there is no evidence whatever adduced that could in law support a verdict for the plaintiffs. If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue, it should be submitted to the jury as a question of fact, and not taken from them and passed upon by the judge as a question of law.</p> <p>6. Where the testimony overcomes the effect of the prima facie regularity of the tax sale proceedings afforded by the deed under the statute, it is incumbent upon the party claiming title through the tax deed to prove its validity.</p> <p>7. Where there was evidence upon which the jury could legally have found for the plaintiffs, an affirmative charge for the defendants is error.</p>

This case was decided by 'the Court En Banc. Writ of Error to the Circuit Count for Orange County. The facts in the case are stated in the opinion, of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for Nassau County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of Error to the Circuit Court for Orange-County. The facts in the case are stated in the opinion of the ' court.

This case was decided by the court E11 B'anc. Writ of Error to the Circuit Court for Orange county. Statement. This is an action brought by the Railroad Commissioners in the name of the State of Florida against the Seaboard Air Line Railway, a corporation, in the Circuit Court for Orange County, to> recover a penalty of $1,000 imposed by such Railroad Commissioners upon the defendant for the violation of Freight Rule 3 of the commissioners.

This case was decided by Division B. Writ of Error to the Circuit Court for Hillsborough County. The facts in 'the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of Error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of Error to> the Circuit Court for - Duval County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</p> <p>Writ of Error to the Circuit Court for Taylor County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division B. Writ of Error to the Circuit Court for Alachua County! Statement. The defendant in error; who will be known elsewhere in this opinion as “the plaintiff,” sued the plaintiff in error in an action of assumpsit.

This case was decided by Division B. Writ of Error to the Circuit Court for Orange County. Statement.

This case was decided by Division B. Appeal from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

<p>i. When an application is made to the court for a temporary injunction or restraining order, without notice to the defendant, the allegations of the bill should be even more carefully scanned and considered than when the defendant has been served with notice and has the opportunity of resisting the application. Before granting a temporary injunction or restraining order, without notice, the court should be satisfied that a clear case therefor is made by the bill, and also that it has clearly been made to appear that it is a case of urgent necessity and one in which irreparable mischief or injury will be produced, if the aid of the court is denied.</p> <p>2. If it is plainly apparent that the bill is without equity, an injunction should not Ire granted in the first instance, but, if granted, should be dissolved at the earliest opportunity by the court and the bill ordered dismissed.</p> <p>3. Both the granting and continuing of injunctions rest largely within the sound judicial discretion of the court, to be governed largely by the facts and circumstances of each particular case, and an abuse of such discretion must be made to appear to an appellate court to warrant it in disturbing such orders.</p> <p>4. Where a temporary injunction has been granted by a Court Commissioner, without notice to.the defendant, and the same is dissolved by the court, after argument by the respective council, and an appeal is taken from such interlocutory order, it is incumbent upon the rppellant to make it clearly appear to the appellate court that there has been an abuse of judicial discretion, every presumption being in favor of the correctness of the ruling of the court below.</p> <p>5. Where the only relief sought by a bill in chancery is the restraining the further prosecution of an action instituted in the county judge’s court for the removal of complainant from a certain building and the discovery of certain matters from the defendants thereto, there being no general prayer, to warrant the granting of such restraining order, the allegations of the bill must be full, clear and specific and facts must be stated, not opinions or legal conclusions.</p> <p>6. In matters of fraud, courts of law have jurisdiction as well as courts of equity and to warrant the granting of a temporary injunction on the ground of fraud it must be made to appear that the alleged fraud is of such a complex or peculiar nature as to require the interposition of a court of equity.</p> <p>7. Where an appeal is taken from an interlocutory order dissolving an injunction, answers of the defendants which were filed after the making of such order and which were not before the court at that time, cannot be considered on appeal, even though they are copied in the transcript.</p>

This case was decided by Division B. Appeal from the Circuit Court for Polk County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from -the Circuit Count for DeSoto County.. The facts in the case are stated in the opinion of the court.

This case 'was decided by Division B. Appeal from the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc.. ' Appeal from the Circuit Court for Brevard County. The facts in the case are stated in the opinion of the ' court.

This case was decided by Division B. Appeal from the Circuit Court for Brevard County. The facts in the case are stated in the opinion of the court.

This case was decided-by Division A. Appeal from the -Circuit Gourt for Dade County. The facts in- the case are st-ated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Clay County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Escambia County. The facts of the case are stated in the opinion of the court.

This case was decided 'by Division A. Appeal from the -Circuit 'Court for Lee County. The facts in the case are stated in .the opinion of the court.

This case was decided 'by tibe 'court En Banc. Appeal from- the Circuit Court for Orange County. The facts in the case are stated in lire opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for DeSoto County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from the Circuit Court for DeSoto County. The facts in the case are stated in the 'opinion of the court.

This case was decided by Division A. Appeal from- the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case was decided by the Court En Banc. Appeal from the Circuit Court for Lake County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division B.</p> <p>Appeal from the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by the court En Banc. This is a -case of original jurisdiction. The facts in the case are stated in the opinion of the court. •

This case was decided by Division A. Appeal from the Circuit Count for Marion County. The facts in the case are stated in the opinion of the court.

This case wa's decided by Division B. Appeal from the Circuit 'Court for Taylor County. The facts in the case are stated in the opinion of the court.

<p>t. Where one of the parties is actually, legally and bona fide domiciled in this State, as a citizen thereof, the chancery courts liave jurisdiction to enforce the duty of maintenance and support 'due from the husband to the wife by awarding alimony, particularly where personal service is made upon the husband within this jurisdiction. Two years residence of the complainant is not required as when the proceeding is ancillary to a suit for divorce.</p> <p>•n. Where a bill of complaint contains allegations with exhibits that are not essential to the relief prayed, but which do not destroy ¡the effect of the material allegations in stating a cause of action, such non-essentials may be treated as surplusage.</p> <p>3. The pendency of divorce proceedings between the parties in another State does not prevent the enforcement of alimony rights in this State.</p> <p>4. In suits for alimony the marriage relation between the parties should in general be made to appear at least prima facie by-proof or admission before a reference to a master is made for the purpose of taking testimony as to alijnony, suit money and counsel fees, since if the marital relation does not exist the defendant is not liable.</p> <p>5. In a suit for alimony where the bill alleging the marriage is sworn to and the defendant is notified of, and is heard by counsel upon, the application for a reference to a master to take testimony as to temporary alimony and counsel fees, and the defendant testifies before the master without calling in question the existence of the marriage relation, he cannot complain of the reference to a master before demurrer or answer filed since the marriage prima facie appears.</p> <p>6. In proceedings for temporary alimony and suit money justice demands some degree of expedition; and where the defendant is notified of an application for the taking of testimony as to temporary alimony and suit money, he should seasonably present questions as to the existence of the marriage relation between himself and the complainant, where that relation prima facie appears.</p> <p>7. As a general rule and in the absence of controlling statutes or r-ules of court an adult married woman sues by next friend when property or personal rights are involved; and the next friend may properly be the husband when the suit is against third parties.</p> <p>8. Where suit is brought by a married woman against her hus-. band to enforce some personal right of hers against him, such as divorce or alimony, not involving trusts or title to or management of property, it is in general not necessary that she sue by next friend.</p> <p>9. Coverture .does not prevent a wife from enforcing by suit in equity in her own name her rights as against the husband, at least where such rights do not involve matters as to which the wife as such may be disqualified to act for herself, such for example as trusts, or the management or transfer of property.</p> <p>10. A married woman sues by next friend to secure the costs or for convenience merely, where the wife is not disqualified to act for herself in the matter sued upon.</p> <p>11. In suits for alimony the right of the wife is personal to herself; it does not ordinarily involve any trust, or the management or transfer of property. The right to alimony grows out of the marriage status, and is for the personal sustenance of the wife which she is able to apply without the intervention of a next friend or a trustee.</p> <p>12. In a proceeding in equity for alimony when the marriage status is prima facie established by admission or proof, the 'court has the power to require the husband to provide temporary alimony and suit money for the wife, to enable her to cope with him in the litigation.</p> <p>13. There may be cases in which the suit of a married woman against her husband should be by next friend to protect her interests or to secure the payment of costs; and the court will take care that the rights of the married woman involved in litigation be properly protected whether she sues by next friend or in her own name alone.</p> <p>14. The rules of procedure seem to contemplate suits in the name of the wife alone for alimony and they have been uniformly so brought in the courts of this State.</p> <p>IS- A demurrer and not a motion to dismiss is the proper method of reaching defects of parties if any apparent upon the face of a bill of complaint in equity.</p> <p>16. Where there is testimony to sustain an order granting temporary alimony and counsel fees the order may not be disturbed.</p>

This case was decided by Division A. Appeal from the. Circuit Count for S'ainlta Roela County. The facts in the case are stated in the opinion of the court.