Einstein v. Davidson

• Decision Date: 05 February 1895
• Citation: 17 So. 563,35 Fla. 342
• Parties: EINSTEIN et al. v. DAVIDSON.
• Court: Florida Supreme Court

17 So. 563

35 Fla. 342

EINSTEIN et al. v. DAVIDSON.

Florida Supreme Court

February 5, 1895

Error to circuit court, Columbia county; John F. White, Judge.

Action by A. Einstein's Sons and A. Leffler against Agnes Davidson, administratrix of the estate of Alexander Davidson deceased. From an order vacating a default judgment for plaintiffs, they bring error. Reversed.

Mabry C.J., dissenting.

Syllabus by the Court

SYLLABUS

1. Where a final judgment, entered by the clerk on a rule day after default duly taken and entered, recites that the clerk 'assessed the damages on one proven account herein filed seven hundred and three dollars and thirteen cents,' such judgment is not void upon its face, upon the ground that it does not show that the clerk acted upon proof of the account sued upon, as required by our statute, before he was authorized to enter such final judgment. Held, further, that, after 60 days had elapsed from the entry of the default upon which such final judgment was predicated, the circuit judge had no power to vacate or set it aside, upon motion, because of errors or irregularities in the entry thereof, touching the proofs on which it was entered, that were not apparent upon the face of the judgment itself, unless a term of the court intervenes prior to the expiration of the court intervenes prior to the default, and in such case such motion could be made only during the continuance of such intervening term.

2. Where a final judgment entered by the clerk upon a default is not void upon its face, but is voidable only, because of matters behors the face of the judgment itself, it passes beyond the control of the circuit court in which it is entered, and becomes an absolute verity, after the lapse of 60 days from the entry of the default upon which it is predicated, unless set aside or reversed by an appellate court in some appellate proceeding taken for its review.

3. A judgment that is absolutely null and void--a mere brutum fulmen--can be set aside and stricken from the record, on motion, at any time, and may be collaterally assailed; but the judgment that is voidable only, because irregular or erroneous, must be moved against in time, by motion to vacate, or by resort to an appellate tribunal; otherwise it becomes an absolute verity, and passes beyond the control of the courts to disturb.

COUNSEL B. B. Blackwell, for plaintiffs in error.

A. J. Henry, for defendant in error.

OPINION

TAYLOR, J.

A Einstein's Sons, on the rule day, the 5th day of April, A. D. 1886, recovered final judgment, upon a default, before the clerk of the circuit court of Columbia county, for $703.13, against A. Davidson. After the entry of judgment by default the clerk entered the final judgment, in the language following: 'And afterwards, on the same day, came the said plaintiffs, and demanded a final judgment against the said defendant; but, because it is unknown what damages the plaintiffs have sustained by reason of the premises, the clerk is required to compute the interest, and inquire and assess the damages the plaintiffs have sustained, as well by reason of the premises, as for their costs and charges by them about this suit in this behalf expended; and the clerk having assessed the damages on one proven account herein filed, seven hundred and three dollars and thirteen cents ($703.13); over and above their costs and charges in this behalf expended: Therefore, it is considered that the said plaintiffs, Jacob A. Einstein and Frank A. Einstein, do have and recover of and from the said defendant, Alexander Davidson, their damages aforesaid by the said clerk so assessed, and also two dollars and forty-three cents ($2.43) for their costs and charges, and that the plaintiffs have execution therefor; and the defendant in mercy, &c. John Vinzant, Jr., Clerk Ct. Ct. April 5th, A. D. 1886.'

Shortly after the entry of this judgment, it was assigned upon the records, by the plaintiffs therein, to A. Leffler.

On the 10th day of September, A. D. 1890, Agnes Davidson, as administratrix of the estate of the judgment debtor, Alexander Davidson, who, it seems, died on the 18th day of May, A. D. 1889, more then three years after the entry of said judgment, served notice upon the attorney for A. L.effler, notice upon the attorney for A. Leffler, that she, as such administratrix, would move before the circuit judge on the 23d of September, A. D. 1890, for an order making her, as administratrix, a party to such judgment, and for an order setting aside and vacating such judgment, upon the ground of irregularities therein, as follows: (1) Because the judgment, as entered by the clerk, was unauthorized, in this; that it appears by the record that the clerk did not ascertain plaintiffs' damages by legal evidence produced to and filed by him after the entry of default, as required by law. (2) Because the clerk entered the said judgment without any evidence before him of any damages sustained by the plaintiffs touching the matters of the suit. (3) Because the said judgment has been fully paid and satisfied by the said A. Davidson in his lifetime. Accompanying this motion there is a verified petition by the said Agnes Davidson, as administratrix, addressed to the judge, in which also she prays to be made a party to said judgment, in which petition she alleges that an execution was issued from such judgment on the 27th of April, A. D. 1886, and that the same was then being enforced by the sheriff by levy and an advertisement of sale of the land of said estate of Alexander Davidson. At the same time with the making of the above motions by Agnes Davidson, as administratrix, a firm doing business as S. Waxelbaum & Son also moved before the circuit judge, in the capacity of judgment creditors of Alexander Davidson, to be made parties, along with Agnes Davidson, as administratrix, to said judgment in favor of A. Einstein's Sons against Alexander Davidson, and to the motion to vacate same. On the 23d day of September, A. D. 1890, more than four years after the entry of said judgment, the circuit judge granted all of said motions, making Agnes Davidson, as administratrix, a party defendant to said judgment, in place and stead of Alexander Davidson, her intestate, and vacating and setting aside the said final judgment. From these orders the plaintiffs in error take writ of error.

The sole question presented for decision is, did the circuit judge, after the lapse of so long a time, have the power to set aside and vacate the final judgment entered, upon a bare motion to that end? It appears from the transcript of the proceedings leading up to the final judgment that the defendant therein, Alexander Davidson, was personally served with summons in the cause, and that he entered an appearance therein, but failed to plead or demur on the rule day, when he was required by the rules so to do, and that thereupon a judgment by default was regularly entered against him, and thereafter, on the same rule day, followed the entry of the final judgment. The only proof exhibited in the record that the clerk had before him to establish the open account sued upon in the cause, and that was the basis of the judgment was an affidavit proving the account that was made by a member of the plaintiff firm before a notary public in the state of Georgia, and that was appended to the account itself that was attached to and filed with the declaration in the cause. Whether there was any other proof of the account than this before the clerk at the time of the entry of the final judgment, or not, the record does not disclose. But, whether there was or was not, the question arises, was it not too late, at the time this motion was made, for the circuit judge to inquire into it, upon motion simply to vacate? If there was in fact no other proof before the clerk upon which to predicate the final judgment than the account attached to and filed with the declaration, with its verification made before a notary public in another state, we are not now called upon to announce what might have been our conclusion as to its sufficiency and...