Cosmopolitan Fire Ins. Co. v. Boatwright
| Decision Date | 01 February 1910 |
| Citation | 51 So. 540,59 Fla. 232 |
| Parties | COSMOPOLITAN FIRE INS. CO. v. BOATWRIGHT. |
| Court | Florida Supreme Court |
In Banc. Error to Circuit Court, Taylor County; B. H. Palmer Judge.
Action by L. T. Boatwright against the Cosmopolitan Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Syllabus by the Court
The statute law authorizing clerks to enter defaults is strictly construed.
An order was made on February 23, 1909, sustaining a demurrer to pleas, and defendant allowed until March 10, 1909, to amend the pleas. The defendant did not amend its pleas as allowed and the clerk entered a default on the said March 10th for the defendant's failure so to do. On the 22d of March 1909, at a regular term, without a judgment determining the plaintiff's right to recover, the case was submitted to a jury to assess the plaintiff's damages, and a judgment entered for the plaintiff on the verdict. Held, that this practice was not warranted by the statute law, or rules of practice in common-law actions.
The proper form of judgment in a case where the facts were as stated in the foregoing headnote, is given in the opinion.
COUNSEL Frazier & Mabry, for plaintiff in error.
Hendry & McKinnon, for defendant in error.
L. T. Boatwright, the defendant in error, brought a suit at law in the circuit court of Taylor county against the plaintiff in error on a fire insurance policy to recover damages for losses sustained in a fire.
A writ of error was sued out to a final judgment in favor of Boatwright. On the 7th of December, 1908, the defendant corporation filed two pleas to the declaration. A demurrer to these pleas was sustained with leave to amend by the 8th of February, 1909. On the last date the defendant corporation filed 20 pleas. On the 12th of February, 1909, the plaintiff filed demurrers to 18 of these pleas and a motion to strike the other two. On the 23d of February, 1909, the circuit judge made the following ruling:
'This cause came on for hearing upon demurrer to the pleas filed, and was argued by counsel, and upon consideration thereof it is ordered that said demurrer be sustained and defendant allowed until March 10, 1909, in which to amend its said pleas.' The motion to strike the two other pleas was granted.
On the 10th of March, 1909, the plaintiff filed a praecipe for default judgment against the defendant for failure to file amended pleas on said day. The clerk on the same day thereupon entered the following:
'It appearing that the defendant was allowed by the court until this date in which to amend its pleas or to file amended pleas herein, and it appearing that such amended pleas have not been so filed, and it further appearing that there is no plea, demurrer, or other proper pleading by the defendant on file in said cause, and the plaintiff having filed his praecipe for default dagainst the said defendant for failure to file its amended pleas by this date, it is thereupon ordered that the defendant is in default herein for failure to file its amended pleas by this the 10th day of March, 1909.
'Witness my hand and official seal this 10th day of March, 1909.
'John C. Calhoun,
The next proceeding in the case shown by the record is the following:
'On the 22d day of March, A. D. 1909, at a regular term of the circuit court in and for Taylor county, the following judgment was entered:
' L. T. Boatwright v. Cosmopolitan Fire Insurance Company. Assumpsit. Damages $1,500.
'This cause coming on to be further heard, and a default having been properly entered, thereupon came the following jury, who were duly chosen, sworn, and impaneled to try said cause and assess the damages: B. M. Johnson, W. J. Morgan, J. H. Hunter, R. R. Roberts, J. M. Wilder, J. M. Goodman.
'The said jury after hearing the evidence, the argument of counsel, and the charge of the court, went to the room to consider of their verdict, and afterwards, to wit, on the same day, the said jury came into open court, answered to their names, and rendered the following verdict:
On the 5th of April, 1909, the defendant filed a motion to vacate the default judgment and the final judgment: First, because the clerk had no power to enter the default judgment; and, second, because defendant's counsel were taken unawares for the reason that a settlement was pending between plaintiff and defendant, and an offer had been made and accepted, by the defendant, and defendant's counsel had believed and had reason to assume that plaintiff's counsel would take no steps unless said settlement failed to go through, and then they would have due notice from plaintiff's counsel; and, third, defendant has a good and meritorious defense which it offers to plead. Affidavits were filed showing the pendency of an attempt by the defendant to settle the case.
On May 5, 1909, the court denied this motion and entered the following order:
'Done this 5th day of May, 1909.
'B. H. Palmer, Judge.'
One of the assignments of error is as follows:
'The court erred in entering a default judgment and a final judgment thereon for failure of the defendant to file amended pleas after he had sustained the demurrer to defendant's amended pleas.'
The statute authorizing clerks to enter defaults is strictly construed. Ropes v. Snyder Harris Bassett Co., 37 Fla. 529, 20 So. 535. The order made by the judge on the 23d of February, 1909, sustaining the demurrer to the pleas of defendant, was not a final judgment on the demurrer; but it simply sustained the demurrer and gave the defendant liberty to amend its pleas by the 10th of March, 1909. The circuit judge did not authorize the clerk to enter a default for failure of defendant to amend its pleas, even granting he had authority so to do. Without any final judgment on the demurrer to the pleas, or judgment determining the right of the plaintiff to recover, the case seems to have been brought to trial before a jury at the regular term in March, 1909. We can find no authority either in the statutes or rules of practice as construed by this court for such a...
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