43 Fla. 297 | Fla. | 1901
In April, 1895, suit was 'instituted by the 'defendant in error, plaintiff below, against the plaintiff in error to recover upon an insurance policy, for loss by fire. Declaration was filed containing one special count based upon the policy of insurance, and several'of the common counts. The defendant demurred to the first count of the declaration 'and filed a plea to 'the common counts. The plaintiff
“Orlando, Fla., Oct. 49th, 1895.
Mess. A. W. Cockrell & Son, Jacksonville, Fla.:
“Dear Sirs — Your letter of the 18th inst. received. We found it'necessary to amend our pleadings and herewith enclose you copy of amended declaration in Smith-Tyler vs. Southern Insurance Company. '* * * Thanking you for all courtesies, we remain,
“Yours very truly, ' Jones & Jones.”
August 1st, 1896, the defendant sued out writ of error to this 'court, and one of the errors assigned is that the clerk had no authority to enter a default on. December 2, 1895. The default entered by the clerk was for failure on the part of the defendant to plead to an amended declaration filed by plaintiff, demurrer to the previous declaration being confessed. In,order that the defendant should be required to plead to such ’declaration, he must have notice thereof. Rule 30 supra. Without such notice he would be under no obligation to plead, and a default entered against him for failure to do so would be unau
The final judgment should be reversed, the default; set aside,.and.the cause remanded for further proceedings according to ¡law.
Per Curiam.
The foregoing opinion has |been examined by the court and is hereby approved and adopted and ordered to be filed as the opinion of the court in said cause.