Cobb v. Trammell

• Decision Date: 06 March 1917
• Parties: COBB et al. v. TRAMMELL, Governor.
• Court: Florida Supreme Court

74 So. 697

73 Fla. 574

COBB et al. v. TRAMMELL, Governor.

Florida Supreme Court

March 6, 1917

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Suit by Park Trammell, Governor of Florida, for the use of Dade County, against J. M. Cobb and United States Fidelity &amp Guaranty Company. Judgment by default for plaintiff, motion to set aside default overruled, and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

The entry of a final judgment by the clerk of the court under the provisions of section 1425 of the General Statutes of Florida 1906, presupposes the entry of a valid default against the defendant for want of an appearance, demurrer, or plea.

A motion by defendant in a civil action for compulsory amendment of the declaration or to strike it, filed before the rule day on which he is required to plead or demur to the declaration, and which motion is not frivolous upon its face but presents questions affecting the plaintiff's right to proceed with the cause, suspends the power of the clerk under section 1422 of the General Statutes 1906, to enter a default against the defendant for failure to plead or demur.

A motion by defendant to strike the declaration or for compulsory amendment of it, which is pending and undisposed of upon the rule day when under the statute he is required to plead or demur, may not be ignored by the plaintiff and a default taken, unless the motion is frivolous and wholly without merit and such a one that a determination of it either way could not affect the right of the plaintiff to proceed with the cause.

COUNSEL Philip Clarkson, of Miami, for plaintiffs in error.

Price &amp Eyles, of Miami, T. F. West, Atty. Gen., and John C Gramling, State Atty., of Miami, for defendant in error.

OPINION

ELLIS J.

The plaintiffs in error took a writ of error to the judgment of the circuit court for Dade county rendered in a cause wherein Park Trammell, Governor of the state of Florida suing for the use of Dade county, sued J. M. Cobb and United States Fidelity & Guaranty Company upon a bond given by Cobb for his appearance before the court.

In the praecipe for the summons 'ad respondendum' the clerk of the court was requested to issue the summons 'in an action of assumpsit.' The summons was issued in accordance with the directions contained in the praecipe, and the defendants were required to appear and answer the plaintiff in an action of assumpsit. The appearance day as stated in the summons was the 6th day of December, 1915. On the 22d day of November, 1915, a declaration upon the appearance bond was filed. It was a declaration in debt on the bond. The declaration contained two counts. In the first the bond was referred to and attached to the declaration as Exhibit A, and by appropriate words made a part of it. In the second count the bond was set out in haec verba. On the 31st day of December, 1915, the defendants filed a motion to strike the declaration, and for compulsory amendment.

On January 3, 1916, the clerk of the circuit court upon request of the plaintiff entered a default against the defendants for want of a plea or demurrer, and on the same day the clerk entered final judgment against the defendants. The judgment so entered by the clerk is in the following words:

'In the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida.

'Park Trammel, Governor of the State of Florida, suing for the use of Dade County, v. J. M. Cobb and United States Fidelity & Guaranty Company.

'This cause coming on to be heard upon the application of the plaintiff for the entry of a final judgment in said cause and it appearing that the defendants J. M. Cobb and United States Fidelity & Guaranty Company appeared in said cause on the rule day of December, 1915, and that a default for want of a plea or demurrer to plaintiff's declaration was duly entered upon the 3d day of January, 1916, being the rule day in said month and recorded in Default Judgment Docket A, page 143, and the plaintiff having filed in this cause the cause of action sued upon, to wit, a certain bond executed by J. M. Cobb as principal and United States Fidelity & Guaranty Company as surety, bearing date the 9th day of August, A. D. 1915, in the sum of $2,500; and it further appearing from said bond that the plaintiff is entitled to have, receive and recover of and from the defendants J. M. Cobb as principal and United States Fidelity & Guaranty Company as surety, upon said bond the principal sum of $2,500, together with interest from the date of filing this suit and the costs of this proceeding, it is therefore ordered, adjudged and decreed: That the plaintiff, Park Trammell, Governor of the state of Florida, suing for the use of Dade county, Florida, have, receive and recover of and from the said defendants J. M. Cobb and United States Fidelity & Guaranty Company, the sum of $2,500 as principal, and the sum of $22.32 as interest, and the costs of this suit hereby taxed at $4.58, making a total of $2,527.90, for which let execution issue.

'This January 3, 1916.

'Z. T. Merritt, Clerk,

'[Ct. Ct. Seal.] By J. B. Hawkins, D. C.'

On the 7th day of January, 1916, the defendants filed a motion to set aside the default and the judgment entered thereon, which motion was in the following words, omitting venue, title, and signatures:

'Now come the defendants J. M. Cobb and United States Fidelity & Guaranty Company, by Philip Clarkson, their attorney, and respectfully move the court to set aside the default heretofore entered herein against these defendants, to set aside the judgment upon said default, heretofore entered herein against these defendants, and to recall the writ of execution heretofore issued upon said judgment. In support of said motion said defendants here show to the court:

'(1) That at and before the taking and entering of said default and said judgment, there was and had been filed in this court and in this cause, by these defendants acting in the utmost good faith and not for the purpose of delay, thirteen separate and distinct motions respectively for the striking of the declaration herein, for the striking of the first count of said declaration, and for the compulsory amendment of said counts, as more fully and at large appears upon the face of said various motions to which these defendants here refer and which they hereby make a part of this motion; that said declaration was inartificial, loose, insufficient, duplicitous, defective and not entitled to be filed, all of which will more fully and at large appear upon inspection thereof and to which in this behalf these defendants here refer and hereby make a part of this motion; that these defendants could not safely plead or demur to said declaration; that the same was so framed as to prejudice, hinder and delay the fair trial of said cause and to embarrass the same; that these defendants in good time filed their said thirteen motions in good faith for the sole and only purpose of causing said declaration to be dealt with by this court so as to remove the said causes of prejudice, delay and embarrassment of a fair trial as aforesaid, and to the end that said cause might promptly proceed in accordance with law; that said thirteen motions presented many important questions of law for determination by the court only, and that the clerk of this court, in entering said default and said judgment thereon, without the knowledge or consent of these defendants or either of them, was exercising judicial powers contrary to law.

'(2) That these defendants were not in law required to obtain an extension of time in which to plead or demur to said declaration, because at the taking and entering of said default and judgment, defendants' said thirteen motions were on file in this cause, and had the first of said motions, to wit, the motion to strike said declaration been allowed by the court, there would have been remaining in said cause no declaration to which these defendants could either plead or demur.

'(3) That in and by said judgment, said clerk has assumed equity powers, in that he has 'ordered, adjudged and decreed' that the plaintiff have, receive and recover of and from these defendants, contrary to law in that regard.

'(4) That said clerk has likewise 'ordered, adjudged and decreed' that plaintiff have, receive and recover of and from these defendants, excessive interest, contrary to law.

'(5) That these defendants and each of them have a good defense on the merits to the whole of the plaintiff's demand upon the following grounds:

'(a) For that the bond sued on in this cause was taken and approved out of the hearing and presence of the circuit court of Dade county, Florida, and out of the hearing and presence of the judge thereof, by one Dan Hardie, while neither said court nor said judge was sitting nor in session nor within the courthouse of said Dade county, and long after said court and said judge had adjourned, without authority of law; and that said bond is wholly void.

'(b) For that also, said bond was not filed in the circuit court of Dade county, Florida, at or before the taking of forfeiture thereof, as the same is set forth in said declaration.

'(c) For that also, there is no record of the taking of any forfeiture of said bond, in said circuit court, as appears from inspection of the records thereof and from inquiry by the attorney of said defendants in this behalf, of the deputy clerk of said court in charge of the records thereof.'

This motion was overruled.

The assignments of error attack the authority of the clerk to enter the default and the final judgment, and the correctness of the court's ruling upon the motion to set aside the default and final judgment.

The ...