Dudley v. White

• Decision Date: 28 February 1902
• Citation: 31 So. 830,44 Fla. 264
• Parties: DUDLEY et al. v. WHITE.
• Court: Florida Supreme Court

31 So. 830

44 Fla. 264

DUDLEY et al. v. WHITE.

Florida Supreme Court

February 28, 1902

Error to circuit court, Hamilton county; Rhydon M. Call, Judge.

Action by John F. White against F. J. Dudley and T. A. Jennings. Judgment for plaintiff, and defendants bring error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The fact that the judge of a circuit court is the plaintiff, or for other reason disqualified in a cause pending in that court, in no manner affects the power of the clerk of the court to perform the ministerial act of entering defaults proper to be entered because of failure to plead within the time required by law, conferred on him by statute; and a default so entered in such a case by the clerk, tested in the name of the judge as well as his own, is valid.

2. If a motion to dismiss filed by the defendant in an action at law within the time allowed by the statute for filing a plea or demurrer be of such a character that the plaintiff will be justified in treating it as a nullity, he may disregard it and cause the clerk to enter a default for failure to plead or demur; but if the motion be not of that character, no default can be entered until the motion is disposed of.

3. An unverified motion to dismiss in behalf of both defendants in an action at law against two, one of whom has been duly served with process in the county where the suit is instituted, the grounds of such motion being that the court has no jurisdiction over the defendants therein, that the cause of action did not accrue in such county, that neither defendant resides in said county, that there is nothing local in the action that gives the court jurisdiction, filed on the return day of the summons, where there is nothing in the record tending to show that the last three grounds of the motion are true, may be treated as a nullity by the plaintiff; and, if no plea or demurrer is filed on the next rule day after the filing of such motion, a default for want of plea or demurrer may be entered, notwithstanding such motion is then on file.

4. Where a defendant appears specially for the purpose of presenting the question of jurisdiction of the court over his person, he must restrict his motion to the ground of such jurisdiction, and must not include therein some other ground that recognizes the jurisdiction of the court over his person, and amounts to an appearance in the cause by him; and if he does so the motion will be held to be a general appearance, notwithstanding the fact that it purports to be made in pursuance of a special appearance.

5. A motion made in pursuance of a special appearance entered in a cause by a party not served, asking the dismissal of the cause upon the ground that the court has not acquired jurisdiction over his person, and also upon the ground or personal privilege to be sued in another county, recognizes the jurisdiction of the court over the person of the mover and amounts to a general appearance on his part.

6. Under section 1034, Rev. St., motions to open defaults properly entered, in order to permit the party in default to plead, must be made within 60 days after the entry of the default, or at the next term of the court if one intervenes between the entry of the default and the expiration of said period of 60 days.

COUNSEL L. E. Roberson and J. N. Stripling, for plaintiffs in error.

J. S White, for defendant in error.

OPINION

CARTER J.

This cause, being reached in its regular order for final hearing was referred by the court to its commissioners, who report that the judgment from which the writ of error was taken ought to be affirmed. The court after due consideration reaches the same conclusion.

It appears that on December 2, 1896, defendant in error, by his attorneys, began an action of assumpsit in the circuit court of Hamilton county against plaintiffs in error, Dudley and Jennings, who were sued as late partners doing business under the firm name and style of F. J. Dudley & Co. Summons issued and was duly returned by the sheriff as having been personally served upon Jennings in Hamilton county. On the 2d day of January, 1897, plaintiff filed his declaration, declaring upon two promissory notes for $2,450 each. On the return day of the summons, January 4, 1897, defendants filed their special appearance in the cause, and moved to dismiss the suit upon four grounds, as follows: '(1) Because the court has no jurisdiction of defendants herein; (2) the cause of action did not accrue in Hamilton county; (3) neither one of said defendants resides in Hamilton county; (4) there is nothing local in the action that gives this court jurisdiction.' On the next rule day, February 1, 1897, at the request of plaintiff's attorneys, the clerk entered a default against the defendants for want of plea, answer, or demurrer, reciting that plaintiff's declaration was filed on the rule day in January; that defendants entered an appearance in the cause on that day, and that they had failed to plead, answer, or demur to plaintiff's declaration on or before the rule day in February. The default was signed by the clerk, but tested in the name of the judge of the court as well as his own. On March 20, 1897, defendants, purporting to appear specially for that purpose, moved to vacate the default on five grounds, as follows: '(1) Defendants are sued as late partners, and the record shows that no service was ever perfected upon F. J. Dudley, and the service upon defendant T. A. Jennings, a late copartner, does not bind defendant Dudley; (2) a motion was pending to dismiss the suit, and plaintiff had no right to a default while said motion was pending; (3) plaintiff is the judge of said court, and the said judgment cannot be properly entered in his favor; (4) the default is not in accordance with the statutory requirements; (5) said default bears teste in the name of the judge who is plaintiff in said cause.' On March 22, 1897, the judge of the Fourth circuit, acting pro hac vice, heard the motion to vacate the default, and denied same. On April 8, 1897, defendant Jennings moved to vacate the order denying the motion to vacate the default, and for leave to amend the motion by adding an additional ground, numbered 6, to the effect that defendants have a meritorious defense to plaintiff's cause of action, tendering with such motion a plea to the merits. On the same day the motion was heard by the judge of the Fourth circuit, acting pro hac vice, and denied. Thereafter, on June 30, 1897, final judgment upon the causes of action sued upon was entered by the clerk, and from this judgment the present writ of error is taken.

The assignments of error complain that the court erred in the following particulars: (1) Entering the default at February rules; (2) denying the motion to vacate the default; (3) denying the motion for leave to plead; (4) refusing to vacate the order denying the motion to vacate the default; (5) entering final judgment.

The facts as stated are taken from the amended abstract filed by plaintiffs in error, which has not been excepted to; and, while some of the motions recite the fact that affidavits were filed in support thereof, none of the affidavits appear in the abstract.

The fifth assignment of error is not argued, and must, therefore be treated as abandoned. The other assignments are argued together, and under them the only questions presented in argument are that the default judgment is void because it bears teste in the name of the judge who was the...