Brown v. Union Bank of Florida

THIS case was brought up, by writ of error, from the Court of Appeals for the Territory of Florida.

A motion was made by Mr. L. A. Thompson to dismiss it, upon two grounds:--

1. Because there was no service of the citation upon the defendant in error.

2. Because the judgment of the Court of Appeals of Florida, remanding the cause for a new trial below, was not a final judgment.

The case was this.

On the 5th of April, 1842, the Union Bank of Florida brought a suit against Thomas Brown, upon the following single bill:--

'TALLAHASSEE, March 14th, 1841.

'Dolls. $22,266 34/100.

'One month after date I promise to pay to the Union Bank of Florida, at their banking-house, in the city of Tallahassee, twenty-two thousand two hundred sixty-six 34/100 dollars, for value received; for securing payment whereof, I do hereby pledge my shares in the capital stock of said bank. Witness my hand and seal.

THOMAS BROWN. [L. S.]'

The defendant pleaded the general issue, four special pleas, and payment. To the pleas of the general issue and payment, the plaintiff filed a general replication; a general demurrer to the second, third, and fourth, and a special demurrer to the fifth plea. These demurrers were all sustained, and the cause came on for trial upon the general replication to the first and sixth pleas. The plaintiff made fourteen prayers to the court, ten of which were granted, and four refused. The defendant made two prayers, both of which were granted. The court then gave eight instructions to the jury. Under all these directions, the jury found a verdict for the defendant. The plaintiff excepted to the refusal of the court to grant his four prayers, to the granting of the two asked by the defendant, and to five out of the eight instructions given by the court.

The case went up to the Court of Appeals of Florida, which, on the 20th of February, 1844, gave the following judgment:--

'It seems to the court here, that there is error is said judgment. Therefore, it is considered by the court, that the said judgment be reversed and annulled; and it is further ordered, that the verdict rendered in this cause be set aside, and that this cause be remanded to the court below, with instructions to said court to award a venire facias de novo, for a new trial of the issues to be had therein, and that the plaintiff in error recover against the defendant in error $_____ his costs by him about his said writ of error herein expended; which is ordered to be certified to the court below.'

From this judgment, a writ of error brought the case up to this court.

The motion to dismiss was made and sustained by Mr. Thompson and Mr. C. Cox, on behalf of the defendant in error, and opposed by Mr Brockenborough and Mr. Eaton, on behalf of the plaintiff in error.

Mr. Thompson, to sustain the first ground of dismissal, namely, that no citation had been served, cited Conk. Pr. 446, and 1 Cranch, 365.

And in support of the second ground, namely, that the judgment was not final, cited 3 Story's Laws, 2224; 8 Laws United States, 707; Bingh. on Judgments, 3; 4 Dallas, 22; 3 Wheat. 433; 12 Wheat. 135; 3 Dallas, 48; 4 Wheat. 73; 6 Wheat. 448.

Mr. Brockenborough, in opposition to the motion, contended that the writ of error was sued out in open court, in which case no citation was necessary; that the act of 1832 placed writs of error and appeals on the same footing, and cited and commented on the acts of 1832 (4 Story, 2330), 1803, 2 Cranch, 349, 7 Peters, 220; act of 1826, 3 Story, 2024.

Mr. Justice McLEAN delivered the opinion of the court.