Johnson v. Dixon Farms Co.

This is an appeal by the defendant from the judgment on the judgment-roll alone. By the filing of a verified complaint, the plaintiff brought the action to recover from the defendant judgment for the sum of $609, alleged to be due the former from the latter by reason of a transaction which is stated in the complaint as it was originally filed as follows: "That on or about the 1st day of December, 1913, plaintiff sold to said defendant fifty-three tons of hay at twelve dollars per ton, amounting to six hundred and nine dollars; that said defendant promised to pay said plaintiff the said amount as follows: One-half thereof to be paid on the 1st day of January, 1914, and one-half on the last day of January, 1914." It is then alleged that the defendant "failed and neglected to pay said amount at said times, and that the said amount, and the whole thereof, still remains due, owing, and unpaid." The defendant demurred to the complaint on both general and special grounds. The special grounds of demurrer are that the complaint is uncertain, ambiguous, and unintelligible because it does not appear therein, nor can it be told therefrom, *Page 54 whether the defendant was required to pay for…

The application for a hearing of this cause in this court, after decision by the district court of appeal of the third district, is denied. In denying such application we deem it proper to say that the appeal was properly disposed of by the district court of appeal on the first ground stated in the opinion. What was said in support of a second ground for affirmance, commencing with "But we may, we think, safely take another view of the question presented," is not at all essential to the maintenance of the judgment of the district court of appeal, and while not intimating any view as to the correctness thereof, we do not desire to be understood by our denial of the application as approving the same. The appeal in this case was manifestly destitute of merit, and the district court of appeal would have been well warranted in penalizing appellant by the imposition of damages for a frivolous appeal, taken purely for delay, as asked by respondent's counsel in his brief. Henshaw, J., Lawlor, J., and Melvin, J., concurred. *Page 59