Benedict v. W.T. Hadlow Co.

• Citation: 52 Fla. 188,42 So. 239
• Parties: BENEDICT v. W. T. HADLOW CO.
• Decision Date: 30 October 1906
• Court: United States State Supreme Court of Florida

42 So. 239

52 Fla. 188

BENEDICT v. W. T. HADLOW CO.

Florida Supreme Court, Division A.

October 30, 1906

Error from Circuit Court, Duval County; Rhydon M. Call, Judge.

Action by the W. T. Hadlow Company against Mary E. Benedict. Judgment for plaintiff. Defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Whether a default properly entered should be set aside is for the determination of the court in the exercise of a sound judicial discretion, upon a consideration of all the facts and circumstances of the particular case which would show the good cause required by the statute; and, while the determination of the court is subject to review, the appellate court will not interfere unless the record shows a gross abuse of discretion. The defendant should at least present facts reasonably excusing the failure to appear, and show by plea, or by affidavits, or otherwise, facts which constitute a good defense to the merits, and also an offer to go to trial at once upon a material issue.

An order denying a motion to set aside a default will not be disturbed on writ of error, when service of summons was duly made, and the defendant failed to appear before default was taken, and in an affidavit in support of the motion to set aside the default states 'that through inadvertence she did not retain an attorney to defend said suit and enter her appearance,' and there is no claim that she had retained or supposed she had retained an attorney before or after the service of the summons on her and before default was taken.

The absence of the seal of the court from the summons and the omission from the praecipe of a statement of the nature of the action are at most amendable defects, and such omissions in no way affect the jurisdiction of the court or the legality of the proceedings.

When the defendant desires to take advantage of the omission of the seal of the court from a summons and the omission of a statement of the nature of the action from a praecipe, it should be done before default; and it is too late to move to quash the summons and service, and in arrest of judgment because of such omissions, after a motion has been made to set aside the default on grounds which recognize the jurisdiction of the court, particularly when no complaint is made of the service of a summons, properly returnable, which bears on its face evidence of its official source and purpose, and leave has been asked to appear and plead to the declaration, which disclosed the nature of the action.

COUNSEL Cooper & Cooper, for plaintiff in error.

George M. Powell, for defendant in error.

OPINION

WHITFIELD J.

On May 25, 1905, the W. T. Hadlow Company, a corporation, by counsel filed in the circuit court for Duval county a praecipe for summons ad respondendum as follows:

'In Circuit Court, Duval County, Florida.

'W T. Hadlow Company, a Corporation Organized and Existing Under and by Virtue of the Laws of the State of Florida, v. Mary E. Bennett. Praecipe for summons.

'The clerk of said court will please issue a summons ad respondendum in the above-entitled cause, directed to the said defendant, Mary E. Benedict, and made returnable to the rule day in June, 1905.

'The plaintiff claims one thousand dollars in an action at law.

'Geo. M. Powell, Attorney for Plaintiff.'

On the same day a summons in the name of the state of Florida, tested in the name of and signed by the clerk of the circuit court for Duval county, was issued; but the seal of the court was not put upon the summons. This summons was on May 25, 1905, served on Mary E. Benedict, by the sheriff. On June 5, 1905, the return day of the summons, the plaintiff by attorney filed its declaration in assumpsit in common counts, claiming $566.50. A bill of particulars covering the amount was filed with the declaration. On the same day a praecipe for a default was filed, and a default for want of appearance was entered on June 5, 1905, a rule day. On June 16, 1905, the defendant filed a motion to set aside the default and for leave to appear and plead. In support of the motion an affidavit of the defendant, sworn to on June 16, 1905, was filed, in which she deposes 'that she is the defendant in the cause; that she has a meritorious defense to the cause of action sued on; that through inadvertence she did not retain an attorney to defend said suit and enter her appearance herein, as required by rule on the rule day in June, and that default was taken [against] said defendant for want of appearance on the rule day in June; that the said plaintiff has not been inconvenienced or delayed in prosecuting his suit, and will not be by the granting of defendant's motion to open said default; that she stands ready and willing to plead to said cause without delay, and she is informed and believes that she had a defense well founded in law in reference thereto. Wherefore this defendant prays that her motion for the opening of the said default be granted.'

Another affidavit, sworn to by W. M. Bostwick, Jr., on June 21, 1905, appears to have been used at the hearing of the motion on August 22, 1905, as follows: 'William M. Bostwick, Jr., being first duly sworn, says: That the defendant in the above-entitled cause consulted him in regard to the probable bringing of the above-entitled suit on or about the 15th day of April, 1905; that he never represented the said defendant in any action at law; that in all previous matters before this court the said defendant had been represented by Messrs. Cooper & Cooper; that he did not consider at the time of the conversation above referred to that said defendant would not employ Messrs. Cooper & Cooper to represent her, but supposed that in the natural sequence of events she would do so; that he was absent from the city on the rule day in June, and had been for several days prior thereto, and did not see the said defendant, nor did he have any means of knowing that this suit had been brought; that he returned here on the 12th day of June, and discovered for the first time that the suit had been brought, and that the defendant in the above-entitled cause expected this affiant to defend the same; that on examination of the record he discovered that default had been entered against said defendant on the 5th day of June, 1905, for want of appearance; that the matter was a thorough misunderstanding on the part of the defendant and this affiant, and, if error on anybody's part, was an error of this affiant's in not ascertaining more definitely the views of defendant; that the said defendant has a good and valid defense against the action herein, and stands ready and willing to plead to the declaration in said cause instanter.'

At the hearing of the motion the defendant tendered and asked leave to file a plea, sworn to on July 26, 1905, consisting of the general issue of 'never was indebted as alleged,' and a special plea averring the construction of a building by the plaintiff for the defendant, and that 'the said plaintiff has received full payment and has given full receipts to this defendant for all work done and material furnished for her account in and about the construction of said building.' The motion to open the default and for leave to appear and plead was denied, and defendant excepted.

On September 9, 1905, the defendant filed motions to quash summons and service and in arrest of judgment on the grounds that '(a) the said paper purporting to be the summons has not, and had not when purporting to be issued and...