Knight v. Dunn

47 Fla. 175 | Fla. | 1904

Cockrell, J.

— To a declaration on a promissory note, the plaintiff in error as defendant below filed a plea as follows: “In the Circuit Court, Citrus County, Florida, to-wit: — D. H. Dunn & Son v. R. J. Knight. Comes defendant in this action and says that before the suit was begun the promissory note sued on was by defendant paid off and discharged, excepting the sum of one hundred and ninety-three dollars, and as to the balance defendant says that at the time action was begun the plaintiffs were indebted unto the plaintiff (sic.) in the sum in excess of said balance for moneys at that time due from the plaintiffs to the defendant, and in a like sum for moneys had and received by the plaintiffs to the defendant’s use, and in a like sum for moneys found to be due from the plaintiffs to the defendant on an account stated between them, and defendant says that the plaintiffs ought not to have and further maintain their said action against him, and this the defendant is ready to verify.

Lloyd & Lloyd and H. L. Anderson,

for Deft.

The State of Florida,-County.

Comes defendant in this action and having by me first been duly sworn says the foregoing pleas are true.

(Signed) R. J. Knight.

Sworn to and subscribed before me September-, 1901. (Signed) W. F. Warnocic, Clerk, (Circuit Court Seal) By W. C. Zimmerman, D. C.”

The plaintiffs moved to strike the foregoing from the files and for a judgment by default as of the rule day in September, 1901, and for such further order as might be proper, on the stated • grounds that said plea is wholly insufficient as a plea or pleas and is so drawn as to prejudice, embarrass and delay the fair trial of the cause; that the same is not signed by counsel nor is it sworn to as required by law. On the hearing thereof,' October 29, 1901, it was adjudged “that the motion to strike said plea and enter a default as of the September rule day is denied,” but it was “considered by the court that the plea or pleas now on file in the cause are so framed and drawn as to embarrass, hinder and delay the fair trial of the action and not to advise plaintiffs of what defense is intended to be relied on by the defendant, it is therefore ordered that the defendant amend his plea or pleas in this cause, setting up partial payment and set-off, or such defense as he is advised is necessary and proper to his defense, in proper separate pleas, and that such amendments be filed in the office of the clerk of this court within ten days from the date of this order, and to furnish copy of the same to the plaintiffs’ attorney prior to the filing of such plea or pleas as amended.” The defendant failed to file any plea within the ten days, and onNovember9,1901,the clerk entered the following: “Come the plaintiffs, by Neil M. Allred, their attorney, and move for default judgment herein against defendant for failure to file amended pleadings herein as required by the order of the court herein on plaintiffs’ motion to strike defendant’s plea, and it appearing that the defendant is in such default, it is ordered that default judgment be and the same is hereby taken and entered against defendant R. J. Knight, in favor of plaintiffs, D. H. Dunn & Son, and they are allowed to proceed ex parte. Done at Inverness, Florida, this 9th November, 1901.

(Signed) Walter F. Warnock, Clerk Circuit Court."

Four'days thereafter the clerk, at the plaintiffs’ request, entered judgment final consequent upon this default and the production of the promissory note, for the full amount of said note and for costs. To review the judgment the defendant prosecutes this writ of error.

There was no error in the holding that the plea was so framed as to embarrass, hinder and delay the fair trial of the action, and so framed as not to advise the plaintiffs of the nature of the defense intended to be relied on. The plea is5 single in form, but made up of two separate and independent defenses, each of which might be made a good plea pro tanto; blending them' together would tend to confuse the issues and make the pleading duplicitous. Much of the plea-is in the nature of a set-off without a bill of particulars, and this court has held that such plea must be specific and is not sufficient if it set up a set-off in general terms. The plea before us, however inartificially drawn, pretends to set up payment as to part of the amount sued for and a set-off as to the balance. The court in its judgment declined to strike the plea and enter default, but ordered the defendant to amend within ten days under R. S. sec. 1043. We do not doubt that the court could properly, upon a showing that no amendment has been made, have then ordered the first plea to be stricken and have entered a default on failure to file the amendment, as for want of a plea but it was not proper for the clerk to do so, as the plea was still on file, so far as he was advised by the court’s order, and there was no direction in said order to him to entertain a motion for default in the event no amendment was filed. See Mickler v. Reddick, 38 Fla. 341, 21 South. Rep. 286.

The default was prematurely entered, and the judgment final based thereon must be reversed, with directions to vacate the default and for further proceedings according to law.

Carter, P. J., and Maxwell, J., concur.

Taylor, C. J., and Hocker and Shackleford, JJ., concur in the opinion.