Poythress and others, adm'r and adm'x of John Smith, v. 92 207 THE DECISIONS OF THE SUPREME COURT OF THE STATE OF FLORIDA. AT JANUARY TERM, 1848. THE UNION BANK OF FLORIDA, FOR THE USE OF CHARLES MOR RISON, vs. BURWELL MCBRIDE. A writ of Error will be dismissed on motion made for that purpose, where the plaintiff in error was the original plaintiff, and had not, previous to suing out his writ of error, paid all costs incurred in the court below, and given bond, as required by statute. There is no exception to this rule in favor of non-resident plaintiffs. LANCASTER, JUSTICE: This cause comes up by Writ of Error, from the Circuit Court for Jefferson county, Chief Justice THOMAS DOUGLAS having sat at th trial. MCCANTS, for Defendant, moved the court, that this Writ of Error be dismissed. 1st. Because plaintiff in error (who was original plaintiff) haď not, at the time of suing out the writ, paid costs. 2nd. Because the plaintiff in error had not given a bond for costs, in such case provided by law. Hagner, for Plaintiff, stated: He did not know that costs had been paid, but thought it probable that, pursuant, to a general understanding between the Clerk of the Circuit Court and himself, the costs had been charged to him. Also that a bond for costs in this court has not been given, and that Morrison, the real plaintiff in interest, resides in England, too far away to have been yet heard from, since the trial below. 1 Union Bank for the use of Charles Morrison, vs. Burwell McBride. The statute of February 12, 1836, Thompson's Digest, 447, section 5, referred to by defendant's attorney provides that "no "appeal, or Writ of Error, shall hereafter be granted to the original "plaintiff in any suit, unless said plaintiff first pay all costs which "may have accrued, in and about said suit, up to the time when "said appeal or Writ of Error is prayed; and, also, enter into bond, "with one or more securities, in a sum sufficient to cover all costs "which may accrue, in the prosecution of said appeal, or Writ of "Error, conditioned to pay the same, if the judgment, sentence, or "decree of the court shall be affirmed." This act of the Legislature (believed by the court to be in full force) is regarded by them as applicable to and conclusive on this mction. The payment of all costs below, and entering into bond, as in the act prescribed, seem to be steps precedent to granting a Writ of Error, imperatively required by the statute. Any other 'construction would, they think, be repugnant to the act, an evasion of it, and, in some instances, render it inoperative. The reason assigned for not having given the required bond does rot, in the opinion of the court, strengthen the plaintiff's position. He is admitted to be a non-resident, and, therefore, not within the read of process from the courts of this State. It is not sufficiently apparent that he paid all costs which accrued in and about his suit. in the Circuit Court, the best evidence of which would be the certificate of the Clerk of that court, and in the opinion of this court, therefore, the most proper evidence. He failed in his suit below, yet, without payment of past costs, or security for those which may here accrue, he seeks further to pursue this defendant. His being a non-resident, adds legal force to the liability he was under to pay all costs below, as well as give bond for those which might accrue here before suing out his writ. The court are unanimously of opinion the motion must be allowed, and do order this cause to be dismissed, and that the defendant, Burwell McBride, have judgment for his costs. Margaret Butler, Administratrix, &c. vs. Thompson & Hagner, Trustees. MARGARET BUTLER, ADMINISTRATRIX, &C., vs. THOMPSON & HAGNER, TRUSTEES. WHERE, in an action of debt against two joint defendants the writ is returned "non est inventus," as to one, and a verdict is obtained against the other, but judgment on the verdict is arrested on motion, on account of the insufficiency of the return as to the other; and where the order granting the motion in arrest, after reciting that the parties appeared by counsel, and that the motion was argued, simply concludes, "it seems to the Court that said motion be sustained," the Court may, at a subsequent term, permit the return of the Sheriff to be amended, and the pleadings to be amended, and a trial upon the merits to be had, notwithstanding such order arresting the judgment. The order sustaining the motion in arrest was not final, but the cause remained in fieri, and the plaintiff might very properly have had leave to amend. Where in such case the plea to the original declaration reached the whole merits of the cause, as well after as before the amendments to the declaration, it is a plea to the amended declaration, and makes an issue between the parties to be submitted to the jury. Whether an entry by the Clerk, reciting "this day came the parties by their attorneys," is of itself evidence of the appearance of both parties-quære? This cause was tried in the Leon Circuit Court, before Judge BALTZELL, and comes up on Writ of Error. A full statement of the case is given by the Chief Justice, who delivered the opinion of the Court. Mr. Archer, for Plaintiff in error: If the judgment of the court upon the motion in arrest was incomplete on the record, amendments at any time would be aliewed to complete and perfect it, there being that in the record to amend by. Nevertheless, the order is final, as much so as any other informal entry of judgment. If the order was final, the farther proceedings at the next term, being without notice to defendant, are of course void. Hair vs. Moody, 9 Alabama, 397. And such proceedings are without notice, unless the entry of the clerk, "this day came the parties," &c., is to conclude the defendant. P this entry is no evidence of defendants appearance. Panter's Bank, 1 Howard, Miss. Rep.,.527. Gwin vs. Margaret Butler, Administratrix, &c. vs. Thompson & Hagner, Trustees. But the amendments in this case should not have been permitted. The object of amendments to informal judgments is, in all cases, to perfect them. Here amendments are allowed to defeat, to set aside the judgment. This is the exclusive province of an appellate tribunal. Again there was no issue in May, 1847, to be tried by the jury. The amended declaration (the amendment being in substance) was a new declaration, and the plea to the original was not to be regarded as a plea to the amended declaration, particularly in the absence of the defendant, who, by such construction of the pleadings, was male a party to those subsequent proceedings, when in fact he was not a party. Mr. Thompson, for Defendants in error. DOUGLAS, Chief Justice: This is an action of debt instituted by the defendants in error in the Leon Circuit Court against Alexander Patterson, Thomas J. Laiham and Bradley McKimmy. The writ is in the following words to wit: "STATE OF FLORIDA. "TO THE SHERIFF OF LEON COUNTY-GREETING. "We command you to summon Alexander Patterson, Thomas J. Latham, and Bradley McKimmy, if they are within the County of Leon, personally to be and appear before the Judge of our Circuit Court for said County, in Tallahassee, on the second Monday in November, next, being the first day of our next term, to answer Leslie A. Thompson and Thomas H. Hagner, Trustees, &c., of an action of debt. Debt $10,000, damages $5000, and have you then and there this writ. Seal of Witness, Daniel McRaeny, Clerk of our said Circuit Court this 31st day of October, A. D. 1845, and 70th year of American Independence. D. MCRAENY, Clerk. Which said writ was duly returned by said sheriff endorsed in these words: "Executed by serving a copy hereof on two of the defendants, Latham and McKimmy. Patterson 'non est inventus.' October 31st, 1845. A. A. FISHER, Sheriff. By J. W. SHERWOOD, D. S." |