38 Fla. 341 | Fla. | 1896
The order of the trial judge vacating the judgment by default and final judgment entered thereon is assigned as error. We are of the opinion that the judge committed no error in the order made. Pleas had been filed and demurred to, and without any disposition of the demurrer an order was made in term time for leave to withdraw the pleas and file amended ones, but when the default was entered there had been no withdrawal of the pleas, and plaintiffs had no right to take tbe default. The order granting leave to withdraw the pleas did not compel defendant to abandon them, nor did it remove them from the case, and until there wás some disposition of them, no default could properly be taken for want of pleas.
The position of counsel for appellants, that by force of the statute the default entered in the case could not be set aside after the expiration of sixty days from the entry thereof, is not correct. Under the pleading act of 1873 (sec. 35, p. 821 McClellan’s Digest) it is provided that the court or judge, for good cause shown, may open any default or judgment for want of appearance, answer or plea, and allow a defendant to demur, plead or answer within a time to be fixed, provided an application for such purpose be made within sixty days from the time of the entry of such default or judgment, unless a term of court shall in the meantime be held, when such application must be made during such term. The limitation of the sixty days for opening defaults provided in the statute has no ap
The action of the court in overruling the demurrer to defendant’s first and second j-deas is also assigned as error, and this presents a question of some difficulty. Chancellor Kent, in his Commentaries (vol. 2, p. 471) says that “on the subject of the claim to a completion of the purchase, or to the payment or return of the consideration money, in a case where the title or the essential qualities of part of the subject fail, and there is no charge of fraud, the law does not seem to be clearly and precisely settled; and it is difficult to reconcile the cases, or make the law harmonize on this vexatious question.” In the case of Long vs. Allen, 2 Fla. 403, S. C. 50 Am. Dec. 281, a bond for title to real estate had been given by the vendor to the vendee and a note taken for the purchase money. In a suit at law on the note the defense of an outstanding equity in the land in a third party was attempted to be made, and it was held that it was not sufficient to sustain a plea of a failure of consideration. It was also held that a bond or covenant constitutes a good and valuable consideration for a note given upon a sale of land, and the want or failure of title was no defense to an action on the note, and that a court of law, though the proper tribunal to try the title to land, will not try it collaterally. In speaking of the defense at law to a note for purchase money of land, it is said: “The
The first plea in the case of Reddick vs. Mickler, 23 Fla. 335, 2 South. Rep. 698, which was an action at law on a note, alleged that the note was given for part of the purchase money of certain described land conveyed by plaintiff to defendant, but the consideration of the note had failed because plaintiff had not placed defendant in possession of the land. There were other' vague and uncertain pleas designed, probably, to set up the defense that defendant got less land than called for in the deed. Nothing was alleged as to the character of the covenants in the deed, if any. The pleas were considered as presenting no sufficient defense, and regarding them as attempting to present a failure
The pleas in this case, as shown by the statement, set up a partial failure of the title to the land sold, but, in view of the decisions referred to in the case of Long vs. Allen, we do not consider the right of a defendant to set up a partial failure of title to land under our statute permitting a total or partial failure of the consideration of a note. The conclusion reached makes it unnecessary to consider this point. The fact that Mary E. Mickler is a married woman and not liable on the covenants in her deed, if such be the
In our judgment the court should have sustained the demurrers to the pleas, and the judgment will be reversed with directions that such order be made.