Clonts v. Spurway

• Decision Date: 24 February 1932
• Citation: 104 Fla. 340,139 So. 896
• Parties: CLONTS v. SPURWAY.
• Court: Florida Supreme Court

139 So. 896

104 Fla. 340

CLONTS v. SPURWAY.

Florida Supreme Court

February 24, 1932

Commissioners' Decision.

Error to Circuit Court, Polk County; Ira A. Hutchison, Judge.

Suit by H. J. Spurway, as receiver of the First National Bank of Lakeland, against Mrs. S. L. A. Clonts, a widow. To review the judgment rendered, the defendant brings error.

Affirmed on condition of remittitur.

COUNSEL

E. M. Knight, of Lakeland, for plaintiff in error.

Johnson Bosarge & Allen, of Bartow, and Carroll D. Judson, of Lakeland, for defendant in error.

OPINION

ANDREWS C.

Defendant in error as complainant below brought suit upon a promissory note against plaintiff in error as defendant below. After a demurrer to the declaration was overruled, defendant, Mrs. S L. A. Clonts, widow, filed two pleas, in the first of which she denies that plaintiff had become obligated to pay reasonable attorney fees for its services; and in the second plea denies that 10 per cent. of the debt would be a reasonable attorney's fee. The pleas contained no denial of the obligation evidenced by the note as to principal and interest, and plaintiff forthwith moved for and obtained from the resident judge a judgment nil dicit on that portion of the declaration which was not denied, and formally joined issue upon the pleas of the defendant as to attorney's fees. When the cause came on for trial, the court instructed a verdict as to amount of the principal and interest and submitted to the jury the question as to the amount of a reasonable attorney's fee, which resulted in a verdict for the principal and interest on the note, plus an attorney's fee of $285.

The first point raised by the assignments of error is that the court erred in granting and entering a judgment nil dicit against the defendant covering the principal and interest on the note.

The contention is made by plaintiff in error that a judgment nil dicit cannot be legally entered in a suit on a promissory note where defendant, as in this case, pleads to the part of the declaration claiming attorney's fees and does not plead to that part of the declaration claiming principal and interest 'where there is only one count in the declaration.'

In the only opinion rendered by this court to which our attention has been directed, on that subject, it was said that it is a well-settled rule of pleading at common law that, if a defendant fails by his pleas to answer the whole of the substantial allegations in any one or separate count in a declaration, the plaintiff has a right to take judgment nil dicit as to so much of the declaration as was not covered by the plea. Charles v. Young, 74 Fla. 298, 76 So. 869; 34 C.J. pages 148 and 165.

The above statement as to the law on that subject is quoted with approval from the Massachusetts case of Dwight v Holbrook, 1 Allen (Mass.) 560, which is followed in the later case of Parker v. Parker, 17 Pick. (34 Mass.) 236.

A judgment nihil dicit (he says nothing) is one which may be taken as of course against a defendant who omits to plead or answer the plaintiff's declaration within the time required. In some jurisdictions it is otherwise known as a judgment 'for want of a plea' (Black's Law Dict. 815), or a 'judgment by default' (34 C.J. 148).

The defendant is ordinarily required to set up his defenses that do not constitute separate causes of action, and, if he neglects to do so, he is concluded by the judgment rendered in such action. It seems that the reason for this rule lies in the principle that there must be an end to litigation, and therefore, where a party has an opportunity to present his defense and neglects to do so, the demands of the law require that he should take the consequences. 15 R. C. L. 969, 971, 446, 448; 34 C.J. 165.

It appears from the record that an appeal was taken on August 21, 1930, from the judgment nil dicit entered by the court June 20, 1930, that the record was filed in the Supreme Court on October 17, 1930, and that upon motion of defendant in error the case was dismissed January 20, 1931. See Clonts v. Anderson, Receiver, 136 So. 408. This had the effect of leaving the case as though no appeal had been taken.

The issues as to attorney fees was tried at the October term, 1930, and a verdict rendered thereon for the principal, interest, and attorney's fees, upon which a final judgment was rendered October 17, 1930, from which the instant writ of error was taken on April 15, 1931. The plaintiff in error contends that the trial court had no jurisdiction to proceed with the said trial and render judgment on October 17, 1930, upon the verdict, prior to the Supreme Court's dismissal of the former writ of error on January 20, 1931, even though there was no supersedeas bond.

While we can see no useful purpose to be served either (1) by the entry of the judgment nil dicit before all issues were adjudicated which were raised by the declaration and pleas, nor (2) by the appeal from such judgment (unless attorney fees be waived), it is quite clear that no reversible error was committed either in entering the said judgment nil dicit on the issues of the principal and interest on the note which was not contested, nor in later trying the issues as to attorneys' fees, upon which issue had been joined, and especially in the absence of any supersedeas bond; and, even if error, it was cured by the subsequent dismissal of the former writ of error by this court which in effect left the matter as if no appeal had been taken.

While there are instances where a judgment nil dicit would be proper under our procedure, as for example if plaintiff desires for some reason to have judgment entered at once for that much of the undisputed and separable cause of action or if the plaintiff in this case had formally waived claim for attorney's fees, but the usual procedure would be to reserve final...