Burkhart v. Gowin

98 So. 140, 86 Fla. 376
CourtSupreme Court of Florida
DecidedNovember 5, 1923
StatusPublished
Cited by14 cases

This text of 98 So. 140 (Burkhart v. Gowin) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkhart v. Gowin, 98 So. 140, 86 Fla. 376 (Fla. 1923).

Opinion

Whitfield, P. J.

The declaration and exhibits herein filed October 11, 1920, are as follows:

“In Circuit Court Eleventh Judicial Circuit of Florida, in and for Dade County.

W. S. Burkhart, Plaintiff, vs. J. I. Gowin, Defendant.— Declaration.

“Now comes the plaintiff, W. S. Burkhart, by his attorney, Lilburn E. Eailey, and brings this his suit against the defendant, J. I. Gowin, for that,

“Whereas, the defendant on the 14th day of December, 1918, by his promissory note now overdue promised to pay to the order of the plaintiff, W. S. Burkhart, on or before three months after date of said note the sum of $250.00, together with the interest thereon at the rate of eight per cent, per annum from date thereof until fuly paid, but did not pay same. Copy of note is hereto attached, marked Exhibit ‘A’ and made a part hereof.

“Second Count

“And the plaintiff further sues the defendant for that,

“Whereas, the defendant on the 1st day of February, 1919, by his promissory note, now overdue, promised to pay to the order of the plaintiff, W. S. Burkhart, sixty days [378]*378after date thereof, the sum of $253.33, together with the interest thereon from date thereof until fully paid, but did not pay same. Copy of said note is hereto attached, marked Exhibit ‘B’ and made a part hereof.

“Third Count

“Whereas, the defendant on the 1st day of February, 1920, by his promissory note of. said date, now overdue, promised to pay to the order of the plaintiff, W. S. Burk-hart, June 1st, next, after 'date of said note, the sum of $100.00, together with the interest thereon at the rate of eight per cent, per annum from date until paid, but did not pay same. Copy of said note is hereto attached, marked Exhibit ‘C’ and made a part hereof.

“Fourth Count

“Whereas, the said defendant by each of said notes set forth in counts, one, two and three of this declaration, promised that in case same were not paid at maturity and same were placed in the hands of an attorney for collection or suit was brought thereon, to pay a reasonable attorney’s fee for bringing said suit or making such collection, and the plaintiff avers and says that neither of said notes were paid at maturity thereof and that all of said notes were past due-and unpaid and that all of said notes have been placed in the hands of an attorney for collection and suit has been brought thereon and that a reasonable attorney’s fee for bringing said suit is $200.00.

“Wherefore, on account of the matters set forth in the foregoing counts numbered one to four, both inclusive, the plaintiff- brings this his suit and alleges his damages in the sum of $1,500.00.

LILBURN R. RAILEY,

Attorney for Plaintiff.

[379]*379“Exhibit ‘A’

No....... $250.00 Miami, Florida, Dec. 14, 1918.

“On or before three months after date, for value received I promise to pay to the order of W. S. Burkhart Two Hundred and fifty and no/100 Dollars at the Fidelity Bank & Trust Co. of Miami, Florida, with interest thereon at the rate of 8 per cent, per annum from date until fully paid. Interest payable semi-annually. The maker and endorser of this note further agree to waive demand, notice of non-payment and protest, and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney’s fees for making such collection. Deferred inter-, est payments to bear interest from maturity at 10 per cent, per annum, payable semi-annually.

J. I. GOWIN, (Seal)

Due............................19....

“Exhibit ‘B’

No.......$253.33. Miami, Florida, Feb. 1st, 1919.

“Sixty days after date, for value received, I promise to pay to the order of W. S. Burkhart, Two Hundred and fifty-three-33/100 Dollars at the FIDELITY BANK & TRUST CO., of Miami, Florida, with interest thereon at the rate of......per cent, per annum from .......... until fully paid. Interest payable semi-annually. The maker and endorser of this note further agree to waive demand, notice of non-payment and protest, and in case suit shall be brought for the collection thereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney’s fees for making such collection. Deferred interest payments to bear interest from maturity at 8 per cent, per annum, payable semi-annually.

Due Apr. 2, 1919. J. I. GOWIN, (Seal)

[380]*380<lExhibit ‘C’

$100.00. ' Miami, Fla., Feb. 1, 1920.

“June 1 next after date, for value received, .......... promise to pay to the order of Dr. W. S. Burkhart One Hundred Dollars at Fidelity Bank & Trust Co. with interest thereon at the rate of 8 per cent, per annum from..... until fuly paid. Interest payable semi-annually. The maker and endorser of this note further agree to waive demand, notice of non-payment and protest; and in case suit shall be brought for the collection thereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney’s fees-for making such collection. Deferred interest payments to bear interest from maturity at ......per cent, per annum, payable semi-annually.

Due June 1, 19 ”. J. I. GOWIN, (Seal).

The court made the following final order:

‘ ‘ This cause coming on to be heard after being set down for hearing upon the demurrer of plaintiff to the pleas of defendant, and the court, after an inspection of the record and proceedings in said cause, being of the opinion that the court is without jurisdiction of the subject matter of said suit because the court is of the opinion that each of the notes sued on herein constitutes separate and distinct causes of action each in itself, and none of said notes being in a sufficient sum to confer jurisdiction upon this court, therefore, it is ordered by the 'court, of its own motion, that said cause be and the same is hereby dismissed.

“And it is further ordered that the writ of garnishment issued in this cause be and the same is hereby dismissed, and that the goods, chattels or money, if any, of the defendant, held in the hands of the garnishee, or the sureties upon the bond given by the defendant, to release his goods, chattels, money or 'effects from the said writ of garnish[381]*381ment, shall upon demand be delivered to the defendant by whoever has possession of same.

“It is further ordered that the bond given by the defendant to secure the release of his property from the operation of the writ of garnishment be and the same is hereby discharged, and the defendant and the sureties therepn released from liability thereon. ’ ’

There is in Dade County a County Court which has jurisdiction “of all cases of law in which the demand or value of the property involved shall not exceed five hundred dollars.” See. 18, Art. V, Constitution of Florida; Sec. 3325, Rev. Gen. Stats. 1920; Chap. 4434, Acts of 1895.

By Section 11, Art. Y, of the Constitution, it is provided that “The Circuit Courts shall have exclusive original jurisdiction in all cases in equity, also in all cases at law not cognizable by inferior courts.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ben-David v. EDUCATION RESOURCES INSTITUTE
974 So. 2d 1138 (District Court of Appeal of Florida, 2008)
Batts v. STATE, DEPT. OF EDUC.
631 So. 2d 369 (District Court of Appeal of Florida, 1994)
GALEN OF FLORIDA v. Arscott
629 So. 2d 856 (District Court of Appeal of Florida, 1994)
PLANTATION GENERAL HOSP. v. Johnson
621 So. 2d 551 (District Court of Appeal of Florida, 1993)
Pantazes v. State Farm General Insurance
50 Fla. Supp. 2d 169 (Volusia County Court, 1991)
Robinson v. U.S. Employees Federal Credit Union
40 Fla. Supp. 2d 61 (Florida Circuit Courts, 1990)
State v. Carter
28 Fla. Supp. 2d 105 (Volusia County Court, 1988)
Milhet Caterers, Inc. v. North Western Meat, Inc.
185 So. 2d 196 (District Court of Appeal of Florida, 1966)
Canonico v. Devine
130 So. 2d 319 (District Court of Appeal of Florida, 1961)
Staiger v. Greb
97 So. 2d 494 (District Court of Appeal of Florida, 1957)
State Ex Rel. City of West Palm Beach v. Chillingworth
129 So. 816 (Supreme Court of Florida, 1930)
Henderson Waits Lumber Co. v. Croft
103 So. 414 (Supreme Court of Florida, 1925)
Davis v. Swicord
88 Fla. 529 (Supreme Court of Florida, 1925)

Cite This Page — Counsel Stack

Bluebook (online)
98 So. 140, 86 Fla. 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkhart-v-gowin-fla-1923.