Porter v. Parslow, 39 Fla. 50

Porter v. Parslow

39 Fla. 50 | Fla. | 1897

Carter, J.:

The defendants in error brought an action of assumpsit against the firm of F. P. Seel or & Co., of which plaintiff in error is surviving partner, in the *52Circuit court of Hillsborough county, on July 1st, 1889. No summons was issued, to the defendants, but on September 2d, 1889, Joseph Y. Porter, one of the defendants, filed pleas to the declaration in his own behalf only. Plaintiffs filed a demurrer to these pleas, which was heard October 3d, 1889, and an order made thereon in the following words: ‘ ‘Demurrer sustained; defendant excepts.” On April 7th, 1890, plaintiffs filed a príncipe with the clerk instructing him to enter a default against defendants for want of a plea or demurrer; and on July 6th, 1891, the clerk entered judgment by default in accordance with the pnecipe. On August 31st, 1891, the clerk, upon affidavit of one of the plaintiffs purporting to prove the cause of action sued upon, entered final judgment against the defendants, and the writ of error was sued out from this judgment by the plaintiff in error as surviving partner, his co-delendant having died.

The only assignments of error argued by plaintiff in error are, that the clerk had no power to enter the default, or final judgment, under the state of the pleadings at the time of such entry. This court has held more than once that a default can not be entered for want of a plea, where the defendant has filed pleas to which a demurrer has been sustained with no leave to plead over. The default entered in this case was, therefore, erroneous. Garlington vs. Priest, 13 Fla. 559; L’Engle vs. L’Engle and Hartridge, Admrs., 19 Fla. 714; Pettys vs. Marsh, 24 Fla. 44, 3 South. Rep. 577.

The fourth assignment of error complains of the action of the court in sustaining plaintiff’s demurrer to defendant’s pleas. We must treat this assignment as-abandoned for failure to argue same. No more is al*53legecl in the brief for plaintiff in error than a bare statement that the ruling of the lower court is erroneous; no reasons being given, no principles of law stated, and no authorities cited. The error complained of is not so glaring or patent that no argument is needed to demonstrate it. Thomas vs. State, 36 Fla. 109, 18 South. Rep. 331.

The judgment is reversed.