Dudley v. White

44 Fla. 264 | Fla. | 1902

Carter, J.

This cause being reached in its regular order for final hearing, was referred by the court to its- commissioners, who report that the judgment from which the writ of error was taken ought to be affirmed. The court after due consideration reaches the same conclusion.

It appears that on December 2,1806, defendant in error by his attorneys began an action in assumpsit in the Circuit Court of Hamilton county against plaintiffs in error, Dudley and Jennings, who were sued a® late partners doing business under the firm name and style of F. J. Dudley & Co. Summons issued and was duly returned by the sheriff as having been personally -served upon Jennings in Hamilton county. On the second day of January, 1897. plaintiff filed his declaration,- declaring upon two promissory notes for $2,450 each. On the return day of the- summon®, January 4th, 1897, defendants filed their special appearance in the cause, and moved to- dismiss the suit upon four grounds, as follows: “1st. Because the court has n.o jurisdiction of defendants herein. 2nd. The cause of action did not accrue in Hamilton county. 3rd. Neither one of said defendants reside in Hamilton countq. áth. There is nothing local in the action that gives this court jurisdiction.” On the next rule day, February 1st, 1897, at the request of plaintiff’s attorneys, the clerk entered a default against the defendants for want of plea, answer or demurrer, reciting that plaintiff’s declaration was filed on the rule day in January; that defendants entered an appearance in the cause on that day, and that they had failed to plead, answer or demur, to plaintiff’s declaration on or before the rule day in February. The default was signed by the clerk, but tested in the name of the judge of the court as well as his own. On March 20, 1897, defendants, purporting to appear specially for that purpose, moved to vacate the default on five grounds, as follows: “1. Defendants are sued as late partners and the record shows that no service was ever perfected upon F. J. Dudley, and the service upon defendant T. A. Jennings., a late copartner, does not bind defendant Dudley. 2. A motion was pending to dismiss the suit, and plaintiff had no' right to a default while ■said motion was pending. 3. Plaintiff is the judge- of said court and the said judgment can not be properly entered in his favor. 4. The default is1 not in accordance with the statutory requirements. 5. Said default bears teste in the name of the judge who is plaintiff in said cause.” -On March 22nd-, 1897, the Judge of the Fourth Circuit, acting pro line vice; heard the motioa to vacate the default and denied same. On April 8, 1897, defendant Jennings moved to vacate the order denying the motion to vacate the default and for leave to amend the motion by adding an additional ground, numbered 6, 'to the effect that defendants have a meritorious defense to plaintiff’s cause of action, tendering with such motion a plea to tile merits. Oil the same day the motion was heard by the Judge of the Fourth Circuit, acting pro hac vice, and denied. Thereafter, on June 30, 1897, final judgment upon the causes of action sued upon was entered by the clerk, and from this judgment the present writ of error is taken.

The1 assignments of error complain that the court erred in the following particulars': 1st. Entering the default at February rules. 2nd. Denying the motion to vacate the default. 3rd. Denying the motion for leave to plead. 4th. Refusing to vacate the order denying the motion to vacate the uefault. bill. Entering final judgment.

The facts as stated are taken from the amended abstract filed'by'plaintiffs in error which has not been excepted to, and while some of the motions recite the fact that affidavits were filed in support thereof, none of the affidavits appear' in the abstrct.

The fifth assignment of error is not argued and must, therefore, be treated as abandoned. The other assignments are argued together, and under them the only questions presented in argument are that the default judgmnt is void because it bears teste in the name of the judge who was the plaintiff in the suit; that the clerk had no authority to enter the default pending the motion to dismiss ; that he had no authority to enter a default against Dudley because he had not been served with process and had not entered his appearance in the suit, and that the default should have been opened in order to permit defendant Jennings to plead.

1. The default was entered by the clerk in pursuance of the authority conferred on him by the statute which empowers him to enter defaults for failure to plead within the time required by law. It is true that' the judge was disqualified from making any orders in the case, because he was the plaintiff therein, but the disqualification ■of a Circuit Judge in no manner affects the power of the ■clerk of the court under the statute to perform the ministerial act of entering defaults proper to be entered be-. ■canse of failure to plead within the time required by law (6 Am. & Eng. Ency. of Law (2nd. ed.) 145; People v. DeCarrillo, 85 Cal. 37) and it follows as a necessary consequence that such default® so entered by the clerk in pursuance of the statute, if necessary tb be tested in the name •of the judge, may be so tested though the judge be disqualified, without affecting the validity of the default.

II. Section 1030 Revised Statutes 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, and Section 1032 provides that if the defendant shall fail to plead or demur at the time hereinbefore provided, or at the time fixed by the court upon motion as hereinbefore 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 hereinbefore provided. In this case no plea or demurrer was filed within the time required by the statute above referred to, but it is contended that the filing of the motion to dismiss operated to suspend the power of the clerk to enter a default for failure to plead or demur until such motion was disposed of by the order of a qualified judge. We do not find that this court has ever decided whether a motion of this character filed within the time allowed for pleading, suspends the power of the clerk to enter default for failure bo plead. In chancery causes it has been held that a paper purporting to be a pl'ea or demurrer filed within the time allowed for pleading, which lias not been certified by counsel or sworn to by the party, as required by the rules or statute, may be treated as a nullity, and that the complainant may, without any application to the court to strike such a paper, cause a decree pro confesso to he entered by the clerk as for failure to plead. Trower v. Bernard, 37 Fla. 226, 20 South. Rep. 241; Taylor v. Brown, 32 Fla. 334, 13 South. Rep. 957. In Huling v. Florida Savings Bank and Real Estate Exchange, 19 Fla. 695, it was held in an action at law that when a plea is not responsive to the declaration or any part of it, it is frivolous and may De treated as a nullity, and without motion to strike out or demur, the plaintiff is entitled to judgment. In the opinion it is said that a eretain plea in that case was not responsive to any fact alleged in the declaration, but was immaterial and frivolous; that whether it was true or false, it did not affect the rights of either party; that when a plea of this character presents no point, either in bar or abatement of the suit, the plaintiff may treat it as a nullity and sign judgment as for want of a plea. We think the principles of this decision must control in determining whether the filing a motion to dismiss will prevent the entry of a default for want of a plea at the expiration of the time for pleading. If the motion be of .such a character that the plaintiff will be justified 'in treating it as a nullity, he may disregard it, and cause the clerk to enter the default; but if the motion be not of that character, no default can be entered until it is disposed of. The mlotion filed in this case, which it is claimed operated to prevent the entry of the default, was a motion to dismiss the suit upon grounds having no relevancy to such a motion under the facts of this caise. The sheriff’s return upon the summons showed service upon the defendant Jennings, which -gave the court jurisdiction over his person, and! the cause of action sued upon consisted of two promissory notes for an amount within the jurisdiction of the court. Upon the face of the proceedings, then, the court had full and complete jurisdiction so far as Jennings was concerned. If facts existed which would show that the court did not have jurisdiction over him, they are not allowed in the motion, nor could .they be properly presented by an unverified motion to dismiss, but only by motion to - quash the service or by other appropriate proceedings. It appearing upon the record that the court did have jurisdiction a® to Jennings, a joint motion in behalf of himself and Dudley would not lie to1 dismiss the suit as to both, even though the court had not acquired jurisdiction over Dudley.. But aside from this it is too plain to admit of argument to the contrary that a suit over the subject-matter of which the court ha® jurisdiction, can not be dismissed upon motion of defendants, part of whom are -served and part not served with process, filed in'the cause on the return day of the original process, where the law as in this case allows the issuance and service of alias process as to those defendants not served-. Such a motion is entirely inappropriate, and presents no material matter for determination, and may be disregarded and treated as a nullity by the plaintiff. The other three grounds of the motion asserted matters which, to be available, must have been ■ pleaded. They relate to the personal privilege accorded to defendants of being sued in a particular county. There was nothing upon the record tending to show that defendants were entitled to the privilege of being sued in- another county, and if facts justifying the privilege existed, they were the proper subject-matter for a plea, and not for an unverified motion such- as was filed in this case. All of tbe grounds of the motion were inappropriate and irrelevant to a motion to dismiss under the circumstances of this case, and as the motion presented nothing material for adjudication, plaintiff had a right to treat it as a nullity and to cause the clerk to enter a default for want' of a plea or demurrer.

III. Dudley had not been served with process, but the motion to dismiss filed in his behalf amounted to a general appearance on his part. In Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 South. Rep. 670, it is said that where a defendant appears specially for the purpose of presenting the question of the jurisdiction of the court over his person, he must restrict his motion to the grcund of such jurisdiction, apd must not include therein some other ground that recognizes the jurisdiction of the court over his person and amounts to an appearance in the cause by him; and we may now add that if he does so, the motion will be held to be a-general appearance, notwithstanding the fact that it is: made in pursuance of a special appearance. Handy v. Insurance Company, 37 Ohio St. 366; Elliot v. Lawhead, 43 Ohio St. 171, 1 N. E. Rep. 577; Burdette v. Corgan, 26 Kan. 102; Bucklin v. Strickler, 32 Neb. 602, 49 N. W. Rep. 371. The last three grounds of the motion filed in this case relate to the personal privileges of being sued in a particular county accorded by statute to defendants in certain cases:, and recognize the jurisdiction of the court over the persons of the defendants The motion, therefore, amounts to' a general appearance on behalf of Dudley, as well as Jennings.

IV. There is no error in the order refusing to permit the motion to vacate the default to be amended iso as to ask that the default he opened for the purpose of permfitting defendant Jennings to plead. This motion was made more than sixty days after the entry of the default, and under the statute (Rev. Stats. Sec. 1034) such motion to b& available must be made within sixty days after such entry. Burrows v. Mickler, 22 Fla. 577; Einstein v. Davidson, 35 Fla. 342, 17 South. Rep. 563.

The judgment of the Circuit .Court will be'affirmed.