Henry v. Spitler

Citations

• 67 Fla. 146
• 64 So. 745

Syllabus

<p>1. In an action of replevin, where the defendant enters a special appearance “for the purpose of moving to quash the return to the writ of replevin” and files his motion to that effect, which is denied, and the defendant then proceeds to defend the action on the merits, he will be considered to have waived any defect which may exist in the service of the writ.</p> <p>2. A defendant in an action at law, who has appeared specially for the purpose of contesting the validity of the service of the summons upon him and such matter has been determined adversely to him, in order to preserve his status as not having been properly served with the summons, so as to give the court jurisdiction over his person, must refrain from taking any subsequent steps to defend the action upon the merits, in the event he proceeds to a trial upon the merits, he can not thereafter in an appellate court be permitted to raise such question of jurisdiction, but will be held to have entered a general appearance.</p> <p>3. A writ .of error to what purports to be a final judgment of a Circuit Court operates as a general appearance in the case of the party taking such writ.</p> <p>■4. It is tlie duty of a party resorting to an appellate court to make tlie errors complained of clearly to appear, if they in truth exist, every presumption being in favor of the correctness of the respective rulings of the trial court.</p> <p>S5. If a defendant in an action of replevin conceives that the declaration filed therein is defective in failing to specify the county in which the property which forms the subject-matter of the controversy is detained, he should test the sufficiency of the declaration by demurring thereto.</p> <p>6. Venue laid in the margin, not repeated in the body of the declaration, is sufficient, though the action be local.</p> <p>7. An assignment based upon the denial of the motion for a new trial cannot be considered by an appellate court, in the absence of an exception to such ruling.</p>