Volume 60 — Florida Reports

This case was decided by Division A. Writ of error to the Criminal Court of Becord for Escambia 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 B. Writ of error to the Circuit Court for Dade 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 Suwannee County. ' The facts in the case are stated in the opinion of the court.

<p>Where the members of the appellate court are equally divided in opinion as to whether a judgment on writ of error should be reversed or affirmed, and there is no prospect of a change of judicial opinion, the judgment should be affirmed so that the litigation may not be unduly prolonged.</p>

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

Tliis 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 Criminal Court of Record 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 Walton 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 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 Columbia 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 Holmes 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 Taylor 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 Jackson County. The facts in the case are stated in the opinion of the corirt.

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 Division A. Writ of error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of. the court.

This case was decided by Division 13. 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 Escambia 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 Escambia County. The facts in the case are stated in the opinion of the court. (The aboye headnotes coyer both the opinion and the opinion on rehearing.)

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Jackson County.</p> <p>The facts in ihe 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 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.

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>Where the members of the appellate court are equally divided in opinion as to whether a judgment on writ of error should be reversed or affirmed, and there is no prospect of a change of judicial opinion, the judgment should be affirmed so that the litigation may not be unduly prolonged.</p>

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.

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

<p>On Behearing.</p> <p>1. A message reading “We want some brick when are you going to skip” puts a telegraph company on notice that substantial business loss to the addressee may follow non-delivery.</p> <p>2. The fact that one party may at will put an end to a continuing contract does not destroy the right to substantial damages against a telegraph company whose negligence alone actually caused its discontinuance.</p>

This case Avas 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 B. 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 the court En Banc.</p> <p>Writ of error to the Circuit Court for Escambia County.</p>

<p>1. A judgment in an action at law is rendered when it is entered or recorded in the minutes of the court during term time or when in vacation it is put in form for such entry or record and is signed by the judge.</p> <p>2. Where no final judgment is entered in the minutes of the court at the trial, but a final judgment nun pro tunc is put in form for record and signed by the trial judge at a subsequent day, a writ of error issued prior to the date of the judgment signed by the judge is ineffectual and cannot be used to bring the judgment to the appellate court for review.</p>

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 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 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 the Court En Banc. Writ of Error to the Circuit Court for Brevard County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. This is a case of original jurisdiction. Statement. This is a case of original jurisdiction. The alternative writ and the motion to quash the same will be found reported in 59 Fla., 612, 52 South. Rep., 4.

This case was decided by the Court En Banc. Writ of error to the Circuit Court for Leon 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 Escambia County. Statement. The plaintiff in error as plaintiff below brought a suit in the circuit court of Escambia county for damages for the alleged breach of two contracts for the sale of certain lumber.

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 Brevard 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 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 Citrus County. The facts in the case are stated in the opinion of the court.

<p>1. An endorser without qualification of a note engages that on due presentment, it shall be paid according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor being duly taken, he will pay the amount thereof to the holder.</p> <p>2. Presentment for payment unless dispensed with or excused is necessary in order to charge an endorser, but presentment may be expressly or impliedly waived.</p> <p>3. Notice of dishonor unless dispensed with or excused must be given to an endorser or he is discharged unless the notice is expressly or impliedly waived.</p> <p>4. Under the statute an endorser of a negotiable promissory note is not liable thereon as endorser if due presentment is not made to the maker for payment, and notice of dishonor is not given, unless presentment and notice are excused, dispensed with or waived.</p> <p>5. The rights of an endorser of a negotiable promissory note to have due presentment and notice before liability attaches to him thereon, are annexed by law for the benefit of the endorser, and under the terms of the statute such presentment and notice may be expressly or impliedly waived. Waiver may be implied from the conduct of the endorser.</p> <p>O. Where before the maturity of a negotiable promissory note an indorser thereof by unequivocal words or acts shows that ne regards his liability as indorser to be absolute and not to be dependent upon proper presentment for payment and notice to him _ of the dishonor of the note, or where the indorser by unequivocal words or acts fairly warrants the holder of the note to conclude that the indorser intended to assume an absolute liability or misleads the holder and induces him to dispense with the presentment for payment and notice of dishonor required by law to fix the liability of an endorser, the indorser may be regarded as having waived his right under the law to have due presentment made and notice of dishonor given to him. The words or acts of the indorser must be of such a character as to fairly justify the holder in being misled thereby or to warrant the holder in concluding that the indorser intended to permit the presentment and notice of dis'honor to be dispensed with or intended to assume an absolute liability.</p> <p>7. A waiver of presentment and notice being in derogation of a statutory right of the indorser, will not be inferred from doubtful acts or language of the indorser.</p> <p>S. Where an indorser of a negotiable promissory note before its maturity is informed by the holder that the makers denied liability and had told him they would not pay the note at maturity or at any other time, and the indorser stated that he did not have the money to pay the note, but that he was liable thereon and if the holder would sue the makers and should fail to recover from them he the indorser would pay it, such action by the indorser is not inconsistent with or a waiver of his right to have due presentment to the makers for payment made and notice of dishonor given, him as a prerequisite to his liability on the note as indorser.</p> <p>9. In an action against an indorser of a negotiable promissory note, where the declaration alleges due presentment of the note for payment and notice of its dishonor to the indorser and such material allegations are not proven, a judgment for the plaintiff will be reversed.</p> <p>10. Common counts are not applicable in an action against an indorser as such of negotiable promissory notes.</p>

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

<p>1. When a temporary injunction is desired it should be specially prayed for.</p> <p>2. Where an issue within the jurisdiction of the County Judge’s Court has been duly determined by that court it is conclusive unless reversed in direct appellate proceedings.</p> <p>S. In the absence of an equitable showing a sheriff should not be enjoined from executing a judgment of the County Judge’s Court.</p> <p>4. One in possession as a tenant cannot maintain a suit against his landlord to remove a cloud from a title to the land claimed by the tenant.</p>

<p>Under the provision of the constitution that a homestead together with one thousand dollars worth of personal property, shall be exempt from forced sale under process of any court, but that no property shall be exempt from sale for the payment of obligations contracted for the purchase of said property, a contractor who purchases material and uses it in the erection of a building for another cannot have an exemption in the amount due him for erecting the building, as against claims for the purchase price of the material so purchased and used.</p>

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

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

This case was decided by Division B. Appealed from the Circuit Court for Escambia County. Statement.

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

This case was decided by División B. Appealed from 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. Appealed from the Circuit Court for De Soto County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division Á.</p> <p>Appealed 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 Division A. Appealed from the Circuit Court for Labe County. Tbe facts in the case are stated in the opinion of the court.

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

<p>1. When in a proceeding for alimony the chancellor dismisses the bill of complaint on the evidence, and no error in such ruling is made to appear the decree will not be reversed.</p> <p>2. Where temporary alimony and attorney fees were allowed by the trial court in a suit for alimony, the order of the court taxing the costs against the wife on dismissing the bill of complaint as not being sustained by the evidence, will not be reversed.</p>

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

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

This case was decided by Division A. Appealed from 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 En Banc. Appealed from 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>Appealed from the Circuit Court for Manatee 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. Appealed 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. 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 bj Division A. Writ of error to the Circuit Court for Jacksou County. The facts in the case are stated in the opinion of the court.

<p>1. When a defendant in an action at law enters a special appearance on the return day of the writ, specifying therein that it is “for the purpose, and none other, of contesting the issuance, validity and service of the summons ad respondendum therein,” and afterwards files a motion to “quash plaintiffs’ praecipe” on the sole ground that the praecipe “fails to state the nature' of the action as is required by section 1392 of the General Statutes of Florida,” no error is committed in denying such motion, even if a motion to “quash a praecipe” might lie in a proper case.</p> <p>2. There is a clear distinction in the functions performed by a demurrer to a pleading and a motion for the compulsory amendment thereof, and this distinction should be observed. They cannot he used interchangeably and indiscriminately employed, as they are governed by essentially different rules of procedure.</p> <p>3. The granting or denial of a motion for the compulsory amendment of a pleading, based on the statute, is a matter resting within the sound judicial discretion of the trial court and the ruling thereon will not be disturbed by an appellate court, unless it is plainly made to appear that there has been an'abuse of such discretion.</p> <p>4. The object of judicial proceedings is to ascertain and to decide upon disputes between parties. In order to do this, it is indispensable that the point or points in controversy be evolved and distinctly presented for decision. The pleadings in an action at law are designed to develop and present the precise points in dispute and they should be characterized with certainty, clearness and conciseness. The administration of justice is a practical affair and the pleadings should not be converted, or rather perverted, into logomachies or logic-chopping.</p> <p>5. In actions at law where the negligence of the defendant is the basis of recovery it is not necessary for the declaration to set out the facts constituting such negligence, but an allegation of sufficient acts causing injury to the plaintiff, coupled with an allegation that such acts were negligently done, will be sufficient.</p> <p>6. No error is committed by the trial court in overruling’ a motion of the defendant for the'compulsory amendment of the declaration, seeking to require the plaintiff to separate the acts of negligence complained of and to state the same specifically in separate counts, especially when no harm is shown to have resulted to the defendant from such ruling.</p> <p>7. In an action at law against a railroad company, an allegation in the declaration “that defendant negligently and carelessly ’ failed and refused to transport and deliver the said ears loaded by the plaintiffs with the said pine dumber with reasonable ■ promptness and dispatch after the same were loaded with the said lumber by the plaintiffs and delivered to the defendant on the sidings' aforesaid, to be transported to J.,” by reason whereof the plaintiffs suffered loss, is not equivalent to an allegation that the freight was accepted by the defendant for transportation.</p> <p>8. In an action against a railroad company, seeking to recover damages for its delay in the transportation and delivery of certain freight, where the declaration fails to allege directly or to charge that such freight was ever accepted by the defendant for transportation, but, fairly construed, the declaration would seem to charge no more than a failure upon the part of the defendant to accept and transport certain freight offered to it by the plaintiffs for shipment, it is error to sustain a demurrer to a plea filed to the declaration, which avers, in substance, that, at the times mentioned in the declaration, owing to an unusual and extraordinary condition of affairs which then prevailed, the defendant was unable to meet the demand upon it to furnish sufficient cars to shippers to transport all their freight, that it did use all reasonable and proper diligence in its efforts to supply the plaintiffs with a fair and proper proportion of its available ears; that the “plaintiffs knew, or could have known by the use of reasonable diligence,” of the existence of such extraordinary condition of affairs, by reason of which the “defendant would probably be unable to supply them with the cars required by them with usual promptness.”</p> <p>9. Where a carrier fails or refuses to accept freight tendered to it for transportation because of its inability to transport it, which inability has been occasioned by extraordinary circumstances or an emergency that could not have been reasonably foreseen and for which the carrier is not responsible, such failure or refusal to accept freight for transportation may not give a shipper the right to recover damages for delays in the transportation of the freight tendered, where the carrier does all that could have been reasonably required of it to meet the demands made upon it for transportation.</p>

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 Division A. Appealed from the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

Statement. The alternative writ of mandamus issued by this court is: “That the Atlantic Coast Line Railroad Company is a railroad corporation, existing under the laws of the State of Virginia, which on the .first day of July 1902 became the owner of divers lines of railway in this State by purchase from the Savannah, Florida & Western Railway Company, which lines, with others since acquired, leased or constructed, it has operated since the said purchase and still operates ,…