73 Fla. 574 | Fla. | 1917
The plaintiffs in error took a writ of error to the judgment of the Circuit Court for Dade County rendered in a cause wherein Park Trammell, Governor of the State of Florida suing for the use of Dade County sued J. M. Cobb and United States Fidelity and Guaranty Company upon a bond given by Cobb for. his appearance before the court.
In the praecipe for the summons' “ad respondendum” the clerk of the court was -requested to issue the summons “in an action of assumpsit.” The summons was issued in accordance with the directions contained in the praecipe, and the defendants were required to appear and answer the plaintiff in an action of assumpsit. The appearance day as stated in the summons was the 6th day of December, 1915. On the 22nd day of November, 1915, a declaration upon the appearance bond was filed. It was a declaration in debt on the bond. The declaration contained two counts. In the first the bond was referred to and attached to the declaration as Exhibit “A,” and by appropriate words made a part of it. In the second count
On January 3, 1916, the Clerk of the Circuit Court upon request of the plaintiff entered a default against the defendants for want of a plea or demurrer, and on the same day the clerk entered final judgment against the defendants. The judgment so entered by the clerk is in the following words:
“In the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida.
“Park Trammell, Governor of the State of Florida, suing for the use of Dade County,
vs
“J. M. Cobb and United States Fidelity & Guaranty Company.
“This cause coming on to be heard upon the application of the plaintiff for the entry of a final judgment in said cause and iUappearing that the defendants J. M. Cobb and United States Fidelity and Guaranty Company-appeared in said cause on the Rule Day of December, 1915, and that a default for want of- a plea or demurrer to plaintiff’s declaration was duly entered upon the 3rd day of January, 1916, being the Rule Day in said month and redorded in Default Judgment Docket ‘A’ page 143 and the plaintiff having filed in this cause the cause of action sued upon to-wit a certain bond executed by J. M. Cobb as principal and United States Fidelity and Guaranty Company as surety bearing date the 9th day of August, A. D. 1915, in the sum of $2500.00; and it further appearing from said bond that the plaintiff is entitled to have, receive and recover of and from the defendants J. M. Cobb as principal and United States Fidelity and
“This January 3rd, 1916. Z. T. Merritt, Clerk.
“By J. B. Hawkins, D: C, (CT. CT. SEAL)” '
On the 7th day of January, 1916, the defendants filed a motion to set aside the default and the judgment entered thereon, which motion was in the following words, omitting venue, title and signatures:
“Now come the defendants J. M. Cobb and United States Fidelity and Guaranty Company, by Philip Clark-son, their attorney, and respectfully move the court: To set aside the default heretofore entered herein against these defendants; to set aside the judgment upon said default, heretofore entered herein against these defendants, and to recall the writ of execution heretofore issued upon said judgment. In support of said motion said defendants here show to the court: (1) That at and before the taking and entering of said default and said judgment, there was and had been filed in this court and in this cause, by these defendants acting in the utmost good faith and not for the purpose of delay, thirteen separate and distinct motions respectively for the striking of the declaration herein, for the striking of the first count of said declaration, and for the compulsory amendment
“(2) That these defendants were not in law required to obtain an extension of time in which to plead or demur to said declaration, because at the taking and entering- of said default and judgment, defendants’ said thirteen motions were on file in this cause, and had the first of said motions to-wit, the motion to' strike said declaration been allowed by the court, there would have been remaining- in said cause no declaration to which these defendants could either plead or demur.
. “(3) That in and by said judgment, said clerk has assumed Equity powers, in that he has rOrdered, adjudged
“(4) That said clerk has likewise 3Ordered, adjudged and decreed3 that plaintiff have, receive and recover of and from, these defendants, excessive interest, contrary to law.
“(5) That these defendants and each of them have a g-ood defense in the merits to the whole of the plaintiff’s, demand upon the 'following grounds: (a) For that the bond sued on in this cause was taken and approved out of the hearing and presence of the Circuit‘Court of Dade County, Florida, and out of the hearing and presence of the judge thereof, by one Dan Hardie, while neither said court nor said judge was sitting nor in session nor within the Court-House of said Dade County, and long after said court and said judge had adjourned, without authority of law; and that said bond is wholly void.
(b) For that also, said bond was not filed in the Circuit Court of Dade County, Florida, at or before the taking of forfeiture thereof, as the same is set forth in said declaration.
“(c) For that also, there is no record of the taking of any forfeiture of áaid bond, in said Circuit Court, as appears from inspection of the records thereof and from inquiry by the attorney of said defendants in this behalf, of the deputy clerk of said court in charge of the records thereof.”
This motion was overruled.
The assignments of error attack the authority of the clerk to enter the default and the final judgment, and the correctness of the court’s ruling upon the motion to set aside the default and final judgment.
The_ motion to strike the declaration and for compul
“Now come the said defendants by their attorney and, because the above declaration is so framed as to prejudice, embarrass and delay the fair trial of the above entitled action, move the court:.
“First. To strike said declaration from the files for that the praecipe and summons herein are expressly in ‘Assumpsit’ whereas said declaration is in ‘Debt’.
“Second. To require amendment of the first count of said declaration for that the same is duplicitous in that it purports to count at once upon an appearance bond and also upon a forfeiture thereof.
“Third. To require amendment of said first count for that it is therein alleged that during the pendency of the habeas corpus proceedings therein referred to, said defendant Cobb was in the custody of the Sheriff of Dade County, Florida, under a capias charging him with criminal libel, whereas it also appears in said count that during the pendency of said habeas corpus proceedings said Cobb was not in the custody of said sheriff either by virtue of said capias or otherwise.
“Fourth. To require amendment of the said first count for that the same alleges a forfeiture to have been ‘duly’ taken, whereas if the same be material, the facts of such forfeiture should be set out.
“Fifth. To require amendment of said first count for that the same alleges that the defendant Cobb ‘entered’ into an apperaanca bond, without alleging that the surety likewise ‘entered’ into said bond.
“Sixth. To require amendment of said first count for
“Seventh. To require amendment of said first count for that it is therein alleged that the defendant Cobb entered into an appearance bond by ‘permission’ of the Circuit Court of Dade County, Florida, whereas the facts which constitute such ‘permission’ should be set -forth.
“Eighth. To require amendment of said first count for that lines No. 14 to No. 2,2 both inclusive are repetitions of the conditions of the bond which .is itself a part of said count.
“Ninth. To strike said first count for that as appears from said declaration, said count in substance and effect is similar to the second count of said narr.
“Tenth. To require amendment of the second count of said declaration for that it is therein alleged that the defendant Cobb at the giving of the appearance bond •therein set forth was under arrest and held in custody by the sheriff of Dade County, Florida, upon a capias charging said Cobb with criminal libel, whereas it also appears from said count that at the giving of said bond said Cobb was not in the custody of said sheriff nor under arrest by virtue of said capias.
“Eleventh. To require amendment of said second count for that it is therein alleged that the judge of the Circuit Court in ^nd for Dade County, Florida, ‘allowed’ the defendant Cobb bail, whereas the facts of such allowance should be set forth.
“Twelfth. To require amendment of said second' count for that the same complains because the defendant Cobb ‘departed from the .jurisdiction of the court without the consent of the court, and without being" legally dis
“Thirteenth.. To require amendment of said second count for that the same alleg-es a forfeiture to have been 'taken and formally declared’ whereas if the same be material, the facts thereof should be alleged.”
Section 1418 of the General Statutes of 1906 provides that “The defendant shall file his plea or demurrer on the rule day succeeding- that upon which the declaration is filed, unless ■upon motion further time be given by the court. He may plead, answer or demur at any time before default for not so doing.”
The provisions on the subject of entering defaults and final judgments by the clerk upon personal service are found in Section 1422 and 1425 of the General Statutes of Florida, 1906, and are as follows:
“1422. (1032). Entry upon rule days. If the defendant shall fail'to appear as hereinbefore provided, or shall fail to plead or demur, at the time hereinbefore provided, or at the time fixed by the court upon motion as herein-before provided, the plaintiff may cause a default to be entered by the clerk against the defendant, and thereupon he may proceed to take final judgment, as hereinafter provided.”
“1425. (1035.) Upon personal service. Upon the entry of any default for want of appearance or for want of demurrer of plea in any suit for the recovery of money founded upon contract, if the action is on a written instrument for the payment of money, the plaintiff at any time after such default may on the production and filing of such instrument cause final judgment ter" be entered for the amount thereof, with interest, and the clerk of the court (or. the judge, if the court has no clerk), shall assess the amount which the plaintiff is entitled to recover
The motion to open the default was made within the time prescribed by Section 1424 of the General Statutes.
The first question presented for our consideration is: Whether the filing of the motion to strike the declaration and for compulsory amendment suspended the power of the Clerk under Section 1422 to enter a default for want of a plea or demurrer. If the entry of the default was without authority and void, the final judgment entered by him was also void and of no> force or effect, because the entry of a final judgment by the Clerk under the'provisions of Section 1425 of the General Statutes presupposes the entry of a valid default.
It is argued by counsel for the defendant in error that the motion to strike the declaration and for compulsory amendment was a nullity, and therefore could have been, and was ignored. If that position is correct, tfie default entered by the Clerk was valid. In support of their proposition they cite Register v. Pringle Bros., 58 Fla. 355, 50 South. Rep. 584, and Dudley v. White, 44 Fla. 264, 31 South. Rep. 830. In the latter case White instituted suit in. Hamilton county against Dudley and Jennings who
■ In the only two cases which have come before this court to which our attention has been called, the motions which were pending when the time for pleading' or demurring arrived, were upon their faces without merit and frivolous. In the two cases in equity cited in Dudley v. White, supra, the plea in one case, and the demurrer in the other, were frivolous and void upon their faces. In the case of Glens Falls Ins. Co. v. Porter, 44 Fla. 568, 33 South. Rep. 473, the Circuit Judge entered a default upon motion of the plaintiff notwithstanding a plea was on file. This court held that as the pleas were wholly immaterial and irrelevant to the plaintiff’s case and tendered no material issue that was leg'ally available as a defense, and denied nothing essential to the plaintiff’s right to recover as alleged in the declaration, there was no error in granting- the motion for default.
The practice may be regarded as settled in this State, that in a common law action where a motion is filed by defendant before the day fixed by the statute for filing a plea or demurrer, and such motion is wholly frivolous and without merit upon its face, it may be treated- as a nullity and the plaintiff may take a default, at the proper '’time for want of a plea or demurrer; but if the motion is not of that character, it must be disposed of before the default may be entered.
Section 1433 °f the General Statutes, 1906, Florida Complied Laws, 1914, provides for compulsory amendment of any pleading upon application of the opposite
There is a division among'the courts as to the question, but the sounder reason seems to support the rule that
It cannot be said that the motion in this case was wholly without merit and frivolous upon its face, and that to have decided it in favor of the defendant it would not have affected the plaintiffs’ right to proceed with the cause.
TJie two counts of the declaration state the sanie cause of action. The giving of a bond by the defendant Cobb for his appearance'before the court on the 9th day of August. 1915, and his failure to appear upon that date. The secon,d count states the cause of action in more words, although not more clearly, and it would certainly be a useless, vain and unnecessary thing to repeat in one count after another the same cause of action. Its only effect would be to embarrass and delay the fair trial of the case. Mitchell v. Mason, 61 Fla. 338, 54 South. Rep. 863.
Without deciding the question whether a person may bring another into court to answer one cause of action and then declare against him in another cause of action, see Hooker v. Gallagher, 6 Fla. 351, text 357, where the question is referred to, we do think that the motion pre
It follows from what has been written that the entry of the default was void, and the judgment entered upon it was entered without authority and should have 'been vacated and set aside upon the motion of defendants.
The judgment is reversed.
Browne, C. J., and Taylor, Shackleford and Whitfield-, JJ., concur.