Kroier v. Kroier

• Decision Date: 05 May 1928
• Citation: 95 Fla. 865,116 So. 753
• Parties: KROIER v. KROIER.
• Court: Florida Supreme Court

116 So. 753

95 Fla. 865

KROIER v. KROIER.

Florida Supreme Court

May 5, 1928

En Banc.

Original proceeding by W. Kroier for certiorari to the clerk of the circuit court for Hillsborough county, to have a copy of the record in the law cases of W. Kroier against T. Kroier and in the chancery case of T. Kroier against W. Kroier transmitted.

Petition for certiorari denied.

See also, 115 So. 546.

Syllabus by the Court

SYLLABUS

Certiorari cannot be used to quash inferior court's judgment unless it is of final nature. Writ of certiorari may not be used to quash a judgment of an inferior court unless such judgment be of a final nature.

Certiorari lies to review and quash order setting aside default judgment entered over year before, on showing that court had no jurisdiction to make vacating order. Writ of certiorari may be resorted to for the purpose of reviewing and quashing an order of court made on defendant's motion more than a year subsequently to the entering of a default and final judgment, vacating and setting aside such former judgment and depriving the plaintiff of the benefit of an execution and writ of garnishment issued thereunder, where it appears that the court was without jurisdiction to make such vacating order.

Generally court loses control of judgments after expiration of term at which rendered; generally, judgments are not subject to vacation or modification by court after expiration of term except that merely clerical errors or misprisions may be corrected. The general rule is that after the expiration of the term the court loses control of its judgments rendered during the term, and they are not subject to vacation or modification, except that merely clerical errors or misprisions may be corrected.

Entirely void judgment may be set aside on motion after expiration of term; entirely void judgment may be collaterally assailed. It is equally well settled that a judgment which is entirely void may be set aside on motion after the expiration of the term, and may even be collaterally assailed.

Ordinarily unless judgment voidable only because irregular or erroneous is moved against during term, or within statutory period, by motion to vacate or proper appellate proceedings, it becomes absolute and passes beyond court's control. A judgment which is voidable only, because irregular or erroneous, must ordinarily be moved against during the term or within the period fixed by statute, by motion to vacate or by proper appellate proceedings; otherwise, it becomes absolute and passes beyond the control of the courts.

Statutory authority of clerks of circuit courts as to entering defaults and final judgments in certain cases must be strictly construed (Rev. Gen. St. 1920, §§ 2619, 2622). The authority conferred upon clerks of the circuit courts by sections 2619 and 2622, Revised General Statutes 1920, pertaining to entering defaults and final judgments in certain cases, is purely statutory and must be strictly construed.

Default or final judgment, entered by circuit court clerk on appearance day, in presence of defendant's appearance duly filed, is void, and may be vacated and set aside on motion, although statutory period for opening defaults has elapsed; statute limiting time for opening default judgments does not apply to defaults or judgments entered by circuit court clerk contrary to law (Rev. Gen. St. 1920, §§ 2619, 2621, 2622). Circuit court clerks have no authority, on appearance day in a suit at law and in the presence of an appearance duly filed by the defendant, to enter either a judgment by default or a final judgment, and judgments so entered are null and void and may be vacated and set aside by the court on motion, although the 60-day period allowed by section 2621, Revised General Statutes 1920, for opening defaults has elapsed, as such statute does not apply to defaults or judgments entered by the clerk without legal authority and in violation of law.

Judgment or decree dismissing suit because party misconceived remedy does not necessarily estop proceeding anew by proper remedy. A judgment or decree against a party dismissing his suit because he has misconceived his remedy does not necessarily estop him from proceeding anew by means of the proper remedy.

If court records show facts conferring jurisdiction or judgment's recitals show jurisdiction attached, its averments are final and conclusive in collateral proceedings. If the court records show the facts necessary to confer jurisdiction or the recitals in the judgment show that jurisdiction did in fact attach, its averments are final and conclusive in collateral proceedings, and cannot be contradicted by extraneous or parol evidence.

Extrinsic evidence is inadmissible to contradict court records showing jurisdiction; party may show one part of court record contradicts another, explicitly and irreconcilably. While it is inadmissible to contradict the court record showing jurisdiction by extrinsic evidence, it is open to a party to show that one part of the record contradicts another part, explicitly and irreconcilably.

Generally, judgment sustaining demurrer for omission of material allegation from plaintiff's pleading does not prevent new suit for same cause in which plaintiff's pleading supplies missing averments. As a general rule, where a demurrer is sustained because of the omission of a material allegation from the plaintiff's pleading, the judgment sustaining the demurrer will not prevent the maintenance of a new suit on the same cause of action in which the plaintiff's pleading supplies the missing averment.

Decree sustaining demurrer to bill seeking to impeach default judgment by parol evidence that defendant had filed appearance held not res judicata as to subsequent motion to vacate same judgment because clerk had filed appearance. A decree sustaining a demurrer to a bill seeking to impeach a default judgment by parol evidence tending to show that the defendant had filed an appearance is not res judicata as to a motion subsequently made to vacate the same judgment on the ground that the clerk had accepted the appearance for filing, had filed it and indorsed his file mark thereon, and that such appearance was on file and a part of the court's records at the time the clerk inadvertently entered such default for want of appearance.

Delay in moving to vacate judgment, so long as party had no notice thereof and rights of innocent third parties did not intervene, will not usually bar relief. Delay in moving to have a judgment vacated, so long as the party had no notice of the judgment and no rights of innocent third parties have intervened, will not usually bar his right to the relief prayed for.

Ordinarily, lapse of time does not affect right to vacate judgment for lack of court's jurisdiction; if party knows judgment, which was merely voidable, was rendered against him, unexcused laches or delay generally precludes him from having it vacated. Ordinarily, lapse of time will not affect the right to vacate a judgment on the ground that the court never had the jurisdiction to enter it. But if a party actually knows that a judgment has been rendered against him, and the judgment is not simply void but merely voidable, it is the rule that he must exercise reasonable diligence in procuring its vacation, and unexcused laches or delay will generally preclude him from obtaining the relief sought.

Judgment absolutely void can generally be set aside and stricken from record on motion at any time. A judgment that is absolutely null and void can, as a general rule, be set aside and stricken from the record on motion at any time.

COUNSEL

E. L. Bryan, of Tampa, for petitioner.

Whitaker Bros., of Tampa, for respondent.

OPINION

BROWN J.

This is a petition to this court to issue its writ of certiorari to the clerk of the circuit court for Hillsborough county ordering transmission to this court of a true copy of the record in the law case of W. Kroier v. T. Kroier, and also in the chancery case of T. Kroier v. W. Kroier, for the purpose of reviewing an order of said circuit court made February 3, 1928, vacating a default judgment entered by the clerk of said court against the defendant in the law case on the rule day in December, 1925, for want of appearance, also the final judgment entered by the clerk on August 12, 1926. The order vacating the former judgments also canceled and voided the execution and writ of garnishment which had issued thereunder.

After the default judgment of December 7, 1925, for want of appearance, had been entered against the defendant, the latter filed a plea to the merits on January 2, 1926. Final judgment was not entered by the clerk until August 1, 1926 and then execution was issued, also writ of garnishment. On September 11, 1926, the defendant in the assumpsit action, T. Kroier, filed a bill in chancery against the plaintiff, W. Kroier, and the sheriff, praying that the default and judgment which had been entered against him by the clerk be vacated and set aside and a new trial be allowed him under the plea which had been filed, and under which he had a good defense, and that the defendants be enjoined from proceeding further under said execution and garnishment. The bill alleged that the complainant's attorney had duly filed and appearance for him as the defendant in said law action on the proper rule day, the first Monday in December, 1925, and on the succeeding rule day had filed his plea, but that through some error or fault of the employees in the clerk's office the appearance was never filed or docketed; that complainant had no knowledge, either directly or indirectly, of the entry of said default or of said final judgment until the garnishment tied up his funds in bank; that the 60...