88 Fla. 63 | Fla. | 1924
This was an application by tire sole heir and administratrix of a judgment debtor to stay further proceedings under the execution issued upon a judgment alleged to be void. An order was entered perpetually staying further proceedings thereunder. Writ of error was taken from this court. The order entered is assigned as error.
The petition alleges that the suit was instituted on May 20, 1920, by filing praecipe for summons ad respondendum; that summons was issued and served upon defendant, and was returned and filed on June 7, 1920; that neither on the rule day in June, the return' day of the summons, nor on or before the next succeeding rule day thereafter was plaintiff’s declaration filed; that plaintiff filed his declaration on March 7, 1921, asking at the same time for a default judgment against defendant for failure to plead or demur as required by law, and default judgment was entered; that -final judgment was entered on the rule day following, April 4, 1921; that defendant has a meritorious defense to the action because the cause of action is promissroy notes which are joint obligations of the defendant and another, which b ad, prior to the date of the judgment, been
Upon a hearing the court ordered “that the execution heretofore issued upon the said judgment, and all proceedings thereunder be and the same are hereby perpetually stayed, and that no further proceedings of any kind or character be had or taken upon the said judgment. ’ ’
Reliance primarily is based upon plaintiff’s failure to file his declaration within the time required. By statute and by rule of court a plaintiff is required to file his declaration on or before the rule day to which process is returnable or on or before the next succeeding rule day. Sec. 2615, Rev. Gen. Stat.; Rule 13, Rules Circuit Court— Law Actions. Upon failure to do so, unless further time is allowed by the Court, the rule provides that “the case shall stand dismissed at the cost of the plaintiff, and the clerk shall enter an order accordingly.” There is nothing in the record to suggest that an order of dismissal was entered.
In Ochus v. Sheldon, Hoyt & Co., 12 Fla. 138, the court was considering a rule providing that “all declarations must be filed on or before the first day of the term, and if not filed by the first term thereafter the suit shall be dismissed.” An insistence that under the operation of this rule the case was ipso facto dismissed upon failure to file
In Hoey v. Jackson, 31 Fla. 541, 13 South. Rep. 459, the validity of a judgment in an action of ejectment was sought to be impeached. From the statement of the case it appears that the suit was instituted and service of summons obtained upon defendant in August, 1873; that nothing further was done until July, 1874, when plaintiff’s declaration was filed; that in October, 1875, judgment by default was entered against defendant; whereupon a jury was empaneled and a verdict was returned upon which judgment was entered in favor of plaintiff. This judgment was held, when challegecl in an equity suit brought for that purpose, not to be void. The court held that “where a party has been regularly served with process and neglects to appear and defend, and suffers judgment to be taken by default, and has not been prevented from making a defense by fraud or accident, unmixed with negligence on his part, a court of equity will not afford him any relief against the judgment, though it may be unjust. ’ ’
In Poppell v. Culpepper, 56 Fla. 515, 47 South. Rep. 351, the court considered a provision of Rule 14, identical with the provision of Rule 13 now being considered. Rule 14 requires that all bonds, notes, bills-of exchange, etc., or copies thereof, upon which suit may be brought shall be filed with the declaration, and provides that if such copy of the cause of action is not served ten days before the rule day succeeding the filing of the declaration “the cause shall stand dismissed upon that rule day, and the clerk shall enter an order accordingly.” In that case the clerk entered an order reciting that the bill of particulars was not filed, as required by the rule, and dismissed the cause.'
“The clerk, in entering judgments by default, acts in a mere ministerial capacity; he exercises no judicial functions. The statute authorizes the judgment, and the clerk is merely an agent, by whom it is written out and placed among the records of the court. He must, therefore, conform strictly to the provisions of the statute, or his proceedings will be without any binding force.” Kelly v.
By the express terms of the rule “the case shall stand dismissed” upon plaintiff’s default infiling his declaration within the time allowed, and “the clerk shall enter-an order accordingly.” Since the clerk, in entering judgment in such a case exercises no judicial function or power but acts in a ministerial capacity only, he may not ignore the mandatory requirements of this rule and, subsequent to the accruing of the duty to dismiss because of plaintiff’s default, and upon the filing of a declaration (unless in accordance with an order of the court allowing further time), visit upon the defendant the penalty of having judgment entered against him in plaintiff’s favor because of a failure to plead. Being in default himself, plaintiff is not in position to demand a judgment to be entered by the clerk in his favor against defendant. Nor is the clerk allowed in such circumstance to ignore the duty resting upon him to enter an order dismissing the case and enter judgment for plaintiff. The judgment entered by the clerk in this case without the sanction or direction of the court was unauthorized.
Error is not made to appear. So the judgment is affirmed.