Peacock v. Ross

On Rehearing Granted. Davis, J. Upon further consideration of this case upon rehearing it is the consensus of the Court that the opinion herein heretofore filed on February 12, 1935, should be recalled and withdrawn and the judgment reversed for a new trial on the plea of set off, but that otherwise the judgment entered for the plaintiff below should be affirmed. See: Edwards v. Fitcher, 104 Fla. 52, 139 Sou. Rep. 585. In the case last cited it was held that where palintiff’s judgment was properly entered, but the appellate court was of the opinion that a new tidal should be awarded on the plea of set off, that the appellate court may reverse the judgment in part and award a new trial on the plea of set off alone. The circumstances shown by the record in this' case, and adverted to in the findings of the trial judge, impel us, upon further consideration of this writ of error upon rehearing, to award a new trial on defendant’s plea of set off. This we do, without prejudice, in order that the asserted rights claimed by the said defendant may be properly advanced, put in issue and determined on their merits in the present action so that defendant’s recovery, if any should be found allowable in his favor, may be applied in diminution of the judgment already entered in favor of the insolvent plaintiff against the defendant in the present case. No opinion is expressed at this time as to the merits, if any, of the s'aid plea of set off, either in law or in fact, that being a matter *501 that should be first tried and adjudged on its merits upon the retrial now ordered to be had in the court below. Reversed on rehearing for retrial of issue of set off but otherwise reaffirmed. Whitfield, C. J., and Ellis, Terrell, Brown and Buford, J. J., concur.