Hellen & Acosta, Plaintiffs in Error, vs. Steinwender & Sellner, Defendants in Error, 28 Fla. 191

Taylor, J.: On the 22nd day of March, 1888, the firm composed of II. A. Steinwender, A. C. Sellner and G. A. Steinwender, doing business under the firm name of Steinwender, & Sellner, instituted their action in assumpsit, upon an account for goods sold, etc., in the Circuit Court of Duval county, against William H. Hellen and George E. Acosta, as partners, doing business under the firm name of Helen & Acosta.

Summons ad respondendum was issued March 22, 1888, returnable to the rule day in April, 1888, and the following return was made thereon by the sheriff: “Received this summons March 22, 1888, and served the same March 22, 1888, by delivering a true copy thereof in the county of Duval to the within named defendant WilHam H. Hellen, of tlie firm of Ilellen & Acosta.” The declaration was not filed until the rule day in May, 1888.

The defendants failed to enter any appearance either on the return day of the summons in April, or oil the rule dajr following in May when the declaration was filed; and, on the rule day in May, the plaintiff caused default judgment to be entered for want of appearance. On the 17th day of May, 1888, a term of the Circuit Court being then in session, the plaintiffs applied to the clerk for, and obtained, the entry of a final judgment for the sum of $866.08, inclusive of costs.

Afterwards, on the 21st day of Tune, 1888, the plaintiffs caused execution to issue. ' On the 22nd day of June, 1888, the defendants by their counsel served the following notice upon the plaintiffs’ counsel: “Take notice that we will on Monday, the 25th day of June, at ten o’clock a. m., or as soon thereafter as we can be heard, move before the Honorable John If. White, Judge, at Live Oak, Florida, to open the default entered, and to set aside the judgment rendered and entered in this case, on the ground that the defendants, William H. Hellen and George F.

Acosta, partners as Ilellen & Acosta, have a meritorious defense to this suit, and were never at any time indebted to the plaintiffs, and were never in anyway served with process in this case.” The hearing of this motion was had before the Judge of the Third Circuit, because of the absence from the State of the Judge of the Fourth Circuit, where the cause was pending. The motion was denied, and from the judgment and the order denying tlie motion the defendants have taken a writ of error to this court.

At the hearing of this motion before the Judge of the Third Circuit, a demurrer and various pleas, affidavits .and other exhibits copied into the record here, purport to have been presented to the judge in support of, and in resistance to, the motion. These exhibits cannot be considered by this court because the fact that they were formally presented to and considered by the court below in connection with said motion is not evidenced to this court by any bill of exceptions, or in any other manner recognized by our statutes or practice. In Broward vs.

State, 9 Fla., 422, the court says : “The proper way to get facts before an appellate court, in such form as to render them evidence, is to make a statement of them in the shape of a bill of exceptions, and then get the Circuit Judge to sign and seal it, and order it.to be made part of the record.” There must be something, either a formal bill of exceptions, or that which is tantamount thereto evidencing the fact that such papers were considered on the hearing of the motion, before we could'consider them on writ of error. Carter vs. State, 20 Fla., 754. The declaration in this case is as follows : “H. A.

Steinwender, A. C. Sellner and G. A. Steinwender, co-partners, doing business under the firm name and style of Steinwender & Sellner, by their attorneys, A. W. Cockrell & Son, sue William H. Hellen and (ieorge F. Acosta, copartners, doing business under the firm name and style of Hellen & Acosta, hereinafter called defendants for this, to-wit: That heretofore the plaintiffs bargained, sold and delivered to Isadore M. Acosta and Joseph S.

Hellen, copartners, doing business under the firm name and style of Hellen & Acosta, hereinafter called Hellen & Acosta No. 1, certaingoods, wares and merchandise, more particularly set forth in the bill of particulars hereto attached as part hereof, for -which the said Hellen & Acosta No. 1 promised to pay the plaintiffs the sum of eight hundred and fifty-two 32-100 dollars, but nevertheless the sard Hellen & Acosta No. 1 wholly refused to pay the same or any part thereof, and still doth refuse so to do, and notwithstanding the said Hellen & Acosta No. 1, soon after receiving said goods, or about the time of actually receiving the same into their place of business on Bay street, in the city of Jacksonville, said county and State, with the intent to defraud the plaintiffs, claimed that they had sold the said goods, wares and merchandise to the defendants, the said Joseph II.

Hellen being the brother of 'William H. Hellen* and the said Isadore M. Acosta being the brother of the said defendant George E.

Acosta, and then and there the defendants under said name of ITellen & Acosta formed a partnership as aforesaid, and continued the business of the said Hellen & Acosta No. 1, at the said place of business, and then and there took possession of all and singular the said goods, wares and merchandise, and converted the same to the use of themselves, the said defendants; notwithstanding the defendants then and there knew that the plaintiffs had not been paid for the same or any part thereof, and notwithstanding • the defendants then and there knew the said Hellen & Acosta No. 1 intended thereby to defraud the plaintiffs as aforesaid.

And thereby the defendants greatly damaged the plaintiffs, and the plaintiffs claim the sum of fifteen hundred dollars. 2.

And for a second count the plaintiffs allege by this reference to all heretofore alleged, excepting the last paragraph next above, and further allege, and the defendants then and there promised to pay the plaintiffs the sum of $852.32, but nevertheless the defendants wholly failed to pay the plaintiffs said sum or any part thereof, and still doth refuse so to do, and the defendants have wholly failed to pay the plaintiffs the value of said goods or any part thereof, and the plaintiffs claim fifteen hundred dollars. 3.

And for a third count the plaintiffs sue-the de-' fendants for this, to-wit: The defendants promised to pay the plaintiffs for certain goods, wares and merchandise, set forth in detail in the bill of particulars hereto attached as a part hereof, sold and delivered by the plaintiffs to the defendants as much as the said goods were reasonably worth, and the same were then and there reasonably worth the sum of $852.32, of which the defendants had notice, and being so indebted, the defendants in consideration thereof promised to pay the plaintiffs said sum, but nevertheless the defendants wholly refused, and still doth refuse, to pay the same or any part thereof, and the plaintiff claims $1,500. 4.

And for a fourth count, the plaintiffs sue the defendants for $852.32, money due and payable by the defendants to the plaintiffs on account stated between them, and plaintiffs claims $1,500. 5. And for a fifth count, the plaintiffs sue the defendants for $852.32, money due and payable by the defendants to the plaintiffs, for goods bargained and sold by the plaintiffs to the defendants, and plaintiffs claim $1,500.”' O.

And for a sixth count, the plaintiffs sue the defendants for $852.32, money due and payable by the defendants to the plaintiffs, for money had and received by the defendants to the use of the plaintiffs, and plaintiffs claim $1,590.” To this declaration there is attached as a part thereof an itemized account for various goods aggregating $852.32, which account is made out against “Hellen & Acosta,” without stating the individual names of the parties composing said firm.

After the entry of the del fault for want of appearance, the following affidavit with the following account appended was filed with the Clerk of the Circuit Court, upon which he entered the final judgment appealed from : “Messrs. Hellen & Acosta, Jacksonville, Fla., To STEIN WEN HER & SELLNER, Dr. 5 Brls. Old Oscar Pepper Bourbon, Spr. ’83, 193.80, per galls. $2.40.....................$465.12 2 Cases Pomeroy.Sec.

Champ., quarts, 25.50... 59.00 2 “ “ “ “ pints, 31.50... 63.00 2 “ FenveCliquot “ quarts, 29.25... 58.50 2 “ “ “ “ pints, 31.25... 62.50 2 “ Dry Monopole “ quarts, 28.30... 56.60 2 “ “ “ “ pints, 30.30... 60.60 1, “ Planot & Co. Cognac, 1840............ 26.00 Dray........ 1.00 8852.32 State of Missouri, ) V ss. City of St. Louis.-) Before me, the undersigned, a Notary Public in and for the city and State aforesaid, duly commissioned and qualified for a term expiring June 29, 1889, personally appeared on this fourteenth day of if ay, A. D. eighteen hundred and eighty-eight, A. C.

Sellner, of lawful age, to me known, who being by me duly sworn, on his oath deposes and says that he is a member of the firm of Steinwender & Sellner, the within named claimants, (said firm being composed of Herman A. Steimvender, Crustavus A.

Steinwender and this affiant,) that the within demand against the copartnership of Hellen & Acosta, of Jacksonville, Florida, is, within the knowledge of affiant, just, due and unpaid; that full credit has been given by claimants to said copartnership of Hellen & Acosta for all payments and offsets to which they are justly and legally entitled, and that the amount of eight hundred and fifty-two and 32-100 dollars, as within claimed, is justly due. Kworn to and subscribed before me this 14th day of May, 1888. Witness mv hand and Notarial seal. J- A C. Kellner ” [Keal.j August Ahrens, Notary Public City of St.

Louis, Missouri. The errors assigned are as follows : “ 1st. The court erred in entering the default'in this case; 2nd. The court erred in rendering' and entering a final judgment in this case; 3rd. The court erred in overruling the motion of the plaintiffs in error to open the default and set aside the judgment herein.” And counsel for plaintiffs in error urges the second assignment on the ground “that the proof does not pretend to show the delivery to the defendants, or to anyone for them; nor does it pretend to show that they derived any benefit therefrom.” We think the second error assigned is well taken.

The plaintiffs in the first count of their declaration disclose the fact tliat the bill of goods sued for was sold and delivered to J osepli tí. Ilellen and Isadore M. Acosta, as copartners, doing business under the firm name of Hellen & Acosta, while the suit is brought against. "William H. Hellen and George F. Acosta, as co-partners, under the same firm name of Hellen & Acosta. The purchasers named in the declaration not even being made parties to the suit.

The second count in the declaration reiterates the allegations contained in the first, by reference, and then alleges a. distinct promise on the part of the defendants to pay the plaintiffs for said goods. The first and second counts coupled together constitute, in substance an allegation that the defendants became liable for and promised to pay the. debt contracted by Joseph tt. Hellen and Isadore M. Acosta, as partners. The third count alleges 'that the defendants promised to pay the plaintiffs for certain goods set forth in detail in the bill of particulars thereto attached.

This bill of particulars is also referred to in the first count as being an exhibit of the goods sold to J osepli tí. Hellen and Isadore M. Acosta. The fourth, count is for money due and payable upon an account alleged to have been stated between plaintiffs and defendants. The fifth count is for money due and payable for goods bargained and sold by plaintiffs to the deefndants. The sixth and last count is for money had and received by the defendants to the use of the plaintiffs. In all these common counts the amount of the said bill alleged in the first count to have been contracted by Joseph tí.

Hellen and Isadore M. Acosta, is claimed. The affidavit filed with the clerk, upon which the final ]' ndgment was entered, does not connect the defendants William H. Hellen and George E. Acosta with the indebtedness sued for in the declaration. Under the familiar rale that the allegata el probata, must agree, this proof should at least have established some one of the counts ex contractu in the declaration as against the defendants; but, it does not establish any one of the counts in the declaration. It does not prove that the bill of goods sued for were ever sold or delivered to the defendants.

Neither does it pretend to prove any promise by the defendants to pay for said goods. We are, therefore, forced to the conclusion that his final judgment has been illegally entered without any proper proof to sustain it. Wilson vs. Friedenburg, 22 Fla., 114. There was error, therefore, in entering it, and the court erred in refusing to set it aside.

It will be proper to say that the affidavit upon which this judgment was entered was not included in the original transcript of the record sent here, though the clerk certified that such transcript constituted a true copy of “ail the proceedings and a correct copy of the record of the judgment, as appears upon the files and records of” his office. This affidavit, duly certified, was subsequently supplied by consent of counsel upon its omission being called to their attention by us.

This became, necessary because the sufficiency of the affidavit was directly questioned in the errors assigned., and in the position taken by counsel for plaintiffs in error in his briefs in reference thereto. The judgment of the court below is reversed.