Johnson v. City of Sebring

• Decision Date: 29 March 1932
• Citation: 104 Fla. 584,140 So. 672
• Parties: JOHNSON et al. v. CITY OF SEBRING.
• Court: Florida Supreme Court

140 So. 672

104 Fla. 584

JOHNSON et al. v. CITY OF SEBRING.

Florida Supreme Court

March 29, 1932

Commissioners' Decision.

Error to Circuit Court, Highlands County; W. J. Barker, Judge.

Action by the City of Sebring against J. Lee Johnson and another. To review an order denying defendants' motion to set aside a default upon which final judgment was entered, defendants bring error.

Reversed and remanded.

ELLIS J., dissenting.

COUNSEL

A. M. Baker and Paul Ritter, both of Sebring, for plaintiffs in error.

M. R McDonald, of Sebring, for defendant in error.

OPINION

ANDREWS C.

This case is here upon writ of error to the circuit court Highlands county, from an order denying a motion to set aside a default upon which final judgment was entered.

A demurrer to the original declaration was sustained by the trial court and the plaintiff allowed until the 15th day of October, 1930, to file an amended declaration, and defendants allowed fifteen days after service of copy of amended declaration 'to plead as they may be advised.'

The amended declaration was filed on October 8, 1930, and a copy thereof served upon attorneys for defendants on the same day. This caused the defendants' further pleading to be due not later than October 23, 1930. A motion for compulsory amendment of the amended declaration was filed by defendants on October 28, 1930. No further steps were taken until November 26, 1930, when plaintiff, without notice, filed motion for, and obtained, a default judgment.

On December 12, 1930, defendants gave notice of and on January 3, 1931, filed, a motion to set aside the default judgment and to have their motion for compulsory amendment considered, also to permit defendants to file their pleas to the amended declaration which were exhibited to the court at the time of the hearing. After the hearing, the court denied the motion and later entered a final judgment upon the affidavit of proof of claim, to which writ of error was taken.

The main question presented for consideration upon this appeal is: Whether or not it was error for the court to enter a default judgment against the defendants while there was on file and undisposed of a motion for compulsory amendment of the declaration, if said motion was not filed by the defendants within the date fixed by the court's order requiring them to further 'plead as he may be advised.'

Plaintiff in error contends that even though the motion for compulsory amendment was not filed on or before the date fixed by the order, nevertheless, as it was on file at the time default was entered, that it was error to disregard it as it constitutes a 'pleading' within contemplation of the statutes and rules as would preclude it being disregarded, unless it was frivolous and without merit.

It is observed that the application filed by plaintiff for a default is based upon the ground that defendants failed and neglected to either 'demur' or file any 'pleas' to the declaration within the time allowed and 'before the application for this order' for default was made.

In its brief defendant in error (plaintiff below) contends, in substance, that the filing of the motion for compulsory amendment is not such a pleading as will prevent a judgment by default being entered where no plea ordemurrer is also filed within the time required, and where there is no order of the court staying further proceedings pending the disposition of said motion.

In this connection, we first direct attention to section 2631, R. G. S. 1920 (section 4297, C. G. L. 1927).

Under the above statute this court has held that in case any amended pleading has been pleaded to before amendment and not pleaded to de novo within the time allowed by the court after amendment, such party has the right to have the original pleading stand and be considered as pleaded to the amended pleading provided such original pleading is responsive to the pleading as amended. Jordan v. John Ryan Co., 35 Fla. 259, 17 So. 73; Sammis v. Wightman, 31 Fla. 10, 12 So. 526. In the case of Hartford Fire Ins. Co. v. Redding, 47 Fla. 228, 37 So. 62, 67 L. R. A. 518, 110 Am. St. Rep. 118, it was held that the words 'to plead,' as used in the above statute, include demurrers to declarations. Crandall's Fla. Com. Law Prac. 82, 83. The lastcited authority, which cites the case of Bacon v. Green, 36 Fla. 325, 18 So. 870, states that if the opposite party does not wish to let his original reply stand to the amended pleading he must plead do novo to the amended pleading and by so doing he 'waives or abandons' all former pleading applicable to the amended pleadings.

So, in the instant case, if the demurrer filed by the defendants to the original declaration is responsive to the declaration as amended, then the court should not have entered a default without notice.

The transcript of the record does not show by exhibit, or otherwise, a copy of the 'cause of action,' nor the nature of the assignment by the bank to the city as security for the later's deposits in the bank before the bank became insolvent, nor the nature and kind of the alleged 'assignment' of all right, title and interest in this particular note or the collateral securing it after the bank became insolvent. The declaration as amended shows that this may constitute a very material issue in this particular case.

The amended declaration makes the note sued upon a part of the declaration, but none is shown is the transcript.

Section 4313, subd. 2, C. G. L. 1927, requires a copy of the note sued upon to be filed with the declaration, though the mere failure do do so is not cause for demurrer unless made a part of the declaration.

Where a declaration states the essentials of a cause of action which is required to be sustained by exhibits, it may not be demurrable (Bethea v. Houck, 80 Fla. 630, 86 So. 502); but where a cause of action is 'expressly made a part of the declaration by apt words,' it may be reached by demurrer. Hoopes v. Crane, 56 Fla. 395, 47 So. 992.

Under section 4296, C. G. L. 1927, a defendant may apply to the court for an order for compulsory amendment of a declaration if the declaration is so framed as to prejudice or embarrass or delay a fair trial of the action. In the case of Cobb et al. v. Trammell, Governor, 73 Fla. 574, 74 So. 697, this court held that a motion for compulsory amendment filed by a defendant to a declaration which is pending and undisposed of should not be ignored by the plaintiff and a default taken, 'unless the motion is frivolous and wholly without merit.' In the later case of Johnson v. Johnson, 91 Fla. 275, 107 So. 342, 344, it was held that: 'Where a motion to strike the declaration or for compulsory amendment thereof, not frivolous on its face, has been filed, and is pending undisposed of and not waived, a judgment by default cannot be taken.'

It is observed that the motion for compulsory amendment in the instant case was not filed on or before the time fixed by the order of the court, but it had been on file for several days when the default judgment was entered. Section 4282, C. G. L. 1927, provides that a defendant may plead, answer, or demur 'at any time before default for not so doing.'

This seems to be the general rule, even in the absence of statutory authority. See 15 R. C. L. 655; 34 C.J. 170 and 171; 6 Ency. Pl. & Pr. 85; Ann. Cas. 1915C, 738, 739, note.

It may well be conceded that a motion for compulsory amendment is of more importance than an ordinary procedural motion; in fact, it appears to have been devised to serve the purposes of a special demurrer, as indicated by section 16 of chapter 1096, Acts of 1861 (now forming both sections 4293 and 4296, C. G. L. 1927), which provides that: 'No pleading shall be deemed insufficient for any defect which could heretofore only be objected to by special demurrer. If any pleading be so framed as to prejudice or embarrass or delay the fair trial of any action, the opposite party may apply to the court to strike out or amend such pleading, and the court shall make such order respecting the same, and also respecting the costs, as it shall see fit.' See Crandall's Fla. Com. Law. Prac. 75, § 62.

The court has held that a motion to compel amendment or to strike is a 'pleading' within the meaning of the statute. Cobb et al. v. Trammell, supra, and cases there cited. Crandall's Fla. Com. Law Practice, 60, § 51.

Therefore, the trial court was without proper authority in entering the default unless the motion for compulsory amendment was frivolous and wholly without merit.

The opinion in the case of Cobb et al. v. Trammell, Governor, supra, in regard to the above statute (section 4296, C. G. L. 1927) providing for motions for compulsory amendments and that courts shall make orders respecting the...