Anderson v. E. W. Agnew & Co.

Citations

• 38 Fla. 30

Syllabus

<p>(Judge Call, of the Fourth Judicial Circuit, sat in the place of Mr. Justice Taylor, who was disqualified).</p> <p>1. Where the entry of an appearance by the defendant is relied upon in this court as curing defects in the service of process, such entry of appearance is a matter that should appear affirmatively and distinctly from the record. A mere recitation by the clerk in a transcript of a record upon a writ of error made before the adoption of Special Rule No. 3 of the Circuit Courts (September 16th, 1895), that a defendant entered an appearance by some unnamed attorney, is not sufficient to show that defendant actually appeared in the case.</p> <p>2. A suggestion of the death of the defendant stating the name of his duly qualified executor, and praying that such executor be made a party defendant in the case in accordance with the rule of court and statute governing such proceedings, when duly filed within the time limited by law for the presentation of claims, is equivalent to and dispenses with the actual presentation of the claim upon which the suit is brought.</p> <p>3. In an action of trover the plea of not guilty raises no issue as to the plaintiff’s property in the goods alleged to have been taken and converted by the defendant. Such plea only operates as a denial that the defendant committed the wrong alleged, i. e., that he took and converted the goods to his own use.</p> <p>4. Under a plea of not guilty, the general issue in trover, the defendant can not prove the property or right of possession of the chattels in question to be in some other person than the plaintiff.</p> <p>.5. The purpose in an action of trover of proving a demand and refusal is to show a conversion of the property; and it is wholly unnecessary to prove a demand where the conversion is otherwise shown.</p>