An аction of assumpsit upon a promissory note was instituted by defendant in error in the Manatee county' Circuit Court against plaintiff in error,
We deem it unnecessary to set forth the pleadings or to discuss these two errors assigned. Suffice it tо say that an examination thereof discloses that they are utterly without merit. However, the record discloses a fundamental errоr therein in the judgment itself which we feel that it is incumbent upon us to notice of our own motion. In so doing we are not unmindful of the fact that, as was said by this court in Dell v. Marvin,
Wе have held that in an equity suit “a jurisdictional matter will be considered by this court, even though the same may not be questioned by the pleadings, оr expressly presented.” McMillan v. Wiley,
The proper practice in a case where a jurisdictional or fundamental error is found in the record, whether the, same be assigned or not, is for the appellate court to reverse the judgment entered in such case. In addition to the authorities above cited, see the follоwing, in which it was held that a void judgment or a judgment rendered without authority should be reversed. Glens Falls Ins. Co. v. Porter,
It seems that such a judgment as the one entered ih the instаnt case would be held void even on collateral attack. Wilson v. Sparkman,
As hаs been said, a promissory note formed the .cause of action in the instant case. The record discloses that said note рrovided for the payment of “a reasonable attorney’s fee” in the event it became necessarj'’ to collect said note through an attorney. On sustaining the demurrer to defendant’s pleas the court below at chambers rendered judgment against the defendant and instructed the clerk to assess the plaintiff’s damages and costs and to enter up final judgment therefor. Plaintiff’s attorneys produсed and filed with the clerk said original promissory note and an ex parte affidavit from a practicing attorney to the effect that $40.00 would be a reasonable attorney’s fee in said action, whereupon said clerk, not in term time, but in vacation, entered up against the defendant judgment in favor of the plaintiff for the sum of $232.50. Said judgment entry of the clerk, on the face of it, shows that he acted on testimony in a case in which he had no authority to act, in that he undertook to ascertain from an affidavit of a practicing attorney what was a reasonable attorney’s fee, and lumped together in the judgment whatever he judicially determined was due as a reasonable attorney’s fee with the amount he calculated to be due on the note for principal and interest. This action of the clerk was clearly erroneous and without authority.
In Glens Falls Ins. Co. v. Porter, supra, this court held that “the statute (section 1035, Rev. St.) that gives authority to clerks to enter final judgments contemplates thаt the clerk can enter a final judgment after default only in those cases where the cause of action is purely and simply a mоney demand founded upon a contract for the payment of money only. In cases where extrinsic evidence dehors the contract sued upon is necessary to ascertain the amount to be re
The proper practice in an action at law, where testimony is necessary for the ascertainment of damages, is to have the same assessed by a jury. See 1 Black on Judg. (2nd ed.), secs. 90 and 91; 1 Dan. on Neg. Inst. (5th ed.), sec. 61a; 1 Suth. on Dam. 773; Parkhurst v. Stone,
It follows from what has been said that for the error found the judgment must be reversed and the case remanded for such proceedings as may be in conformity with law and not inconsistent with this opinion. However, as the errors assigned by the plaintiff in error have been found to be without merit, it is ordered that the costs in this court be equally taxed against the plaintiff and defendant in error respectively.