Busard v. Houston

Decision Date28 May 1913
Citation62 So. 483,65 Fla. 479
PartiesBUSARD et al. v. HOUSTON.
CourtFlorida Supreme Court

Error to Circuit Court, Dade County.

Action by Agnes G. Houston, by her next friend, George M. Houston against J. W. Busard and Jennie G. Busard. Judgment for plaintiff, and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

A final judgment cannot be entered by the clerk of the circuit court where the only service of notice of the suit is by publication.

A writ of error from what purports to be a final judgment of a circuit court operates as a general appearance in the case of the parties taking the writ.

COUNSEL J. L. Billingsley, of Miami, for plaintiffs in error.

Shutts Smith & Bowen, of Miami, for defendant in error.

OPINION

HOCKER, J.

The defendant in error, to whom reference will be made as plaintiffs, brought an action in the circuit court of Dade county against plaintiffs in error, who will be referred to as the defendants. The action was commenced by attachment levied on certain real estate. There was no personal service on the defendants.

There was no appearance or plea by the defendants, and on the 29th of August, 1912, the plaintiff filed a motion in the following words, after giving correct title of the cause 'Comes now the plaintiff, by her attorneys, Shutts, Smith & Bowen, and moves the court to enter a final judgment against the defendants, J. W. Busard and Jennie G. Busard, in the above-entitled cause. Original note sued on hereto attached.' (Signed by the attorneys.)

The record then shows the following, after stating the title of the cause:

'Now on the 5th day of August, 1912, came the plaintiff, by her attorneys, Shutts, Smith & Bowen, and showed unto the court that service by publication was duly had upon the defendants, and moved the court to enter a default against the defendants for failure to appear, plead, answer, or demur to the declaration filed in this cause.
'And now again on the 29th day of August, 1912, comes the plaintiff, by her attorneys, Shutts, Smith & Bowen, and moves the court to enter a final judgment against the defendants, and the plaintiff filed in evidence cause of action sued on, to wit, copy of promissory note made and executed by the defendants to the plaintiff, and the clerk having ascertained that there is due the plaintiff the principal sum of $1,270. 00/100, and interest thereon amounting to $444. 6/100:
'It is therefore considered by the court that the plaintiff do have and recover of and from the defendant, J. W. Busard & Jennie G., the sum of $1,270 principal and $444.06 interest thereon, together with the costs of this proceeding, which are hereby taxed at $7.26, for which let execution issue.
'Z. T. Merritt, Clerk Circuit Court.
'By J. B. Hawkins, Deputy Clerk.'

A writ of error was sued out from this judgment.

The record does not show that a default was entered.

There are six assignments of error, but it is only necessary to consider two of them. The first questions the authority of the clerk to enter the judgment.

Section 1426, Gen. Stats. of 1906, provides for a default and final judgment upon constructive...

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6 cases
  • Minick v. Minick
    • United States
    • Florida Supreme Court
    • July 18, 1933
    ... ... the party taking the writ. Barwick v. Rouse, 53 Fla ... 643, 43 So. 753; Busard v. Houston, 65 Fla. 479, 62 ... So. 483; Henry v. Spitler, 67 Fla. 146, 64 So. 745, ... Ann. Cas. 1916E, 1267 ... However, ... we ... ...
  • Henry v. Spitler
    • United States
    • Florida Supreme Court
    • March 3, 1914
    ...to which we express no opinion, and should for that reason reverse the judgment, the defendant would then be in court. See Busard v. Houston, 65 Fla. 479, 62 So. 483, following prior decisions in holding that: 'A writ error from what purports to be a final judgment of a circuit court operat......
  • Bank of Jasper v. First Nat Bank of Rome, Ga First Nat Bank of Jasper, Fla v. State Bank of Rome, Ga Same v. First Nat Bank of Rome, Ga Bank of Jasper v. State Bank of Rome, Ga
    • United States
    • U.S. Supreme Court
    • February 27, 1922
    ...563; Hayman et al. v. Weil et al., 53 Fla. 127, 132, 44 South. 176; Barwick v. Rouse, 53 Fla. 643, 646, 43 South. 753; Busard v. Houston, 65 Fla. 479, 482, 62 South. 483; Henry v. Spitler, 67 Fla. 146, 150, 64 South. 745, Ann. Cas. 1916E, 1267. ...
  • A.R. Harper Piano Co. v. Seaboard Air Line Ry.
    • United States
    • Florida Supreme Court
    • June 3, 1913
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