Malone v. Meres
| Citation | 107 So. 625,91 Fla. 490 |
| Parties | MALONE v. MERES. |
| Decision Date | 12 March 1926 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Pinellas County; M. A. McMullen, Judge.
Action by Ernest Meres, as receiver of the Sponge Exchange Bank of Tarpon Springs, against Frank E. Malone on notes. His motion to vacate judgment for plaintiff was denied, and defendant brings error.
Affirmed.
Syllabus by the Court
In action in circuit court on notes providing for reasonable attorney's fees in which court acquires jurisdiction of defendant who defaults and does not ask for jury trial, judge may, in vacation, render judgment for amount due on judgment together with reasonable attorneys' fees (Rev. Gen. St 1920, §§ 2531, 2620, 2622, 4854). In an action brought in the circuit court upon promissory notes which provide for 'a reasonable attorney's fee,' where the court acquires jurisdiction of the defendant who defaults and does not ask for a jury trial, the judge may, in vacation. render judgment for the amount due on the notes, together with a reasonable amount for attorney fees, since the statute authorizes the judge 'to exercise in vacation, any jurisdiction or power' which does not 'require the intervention of a jury.' and also authorizes the court to adjudicate the reasonableness of an attorney fee stipulated for in nonusurious contracts, and to enter final judgments on promissory notes after default.
Where final judgment is not void, motion to set it aside and to vacate execution issued thereon is properly denied. Where a final judgment is not void, a motion to set it aside and to vacate the execution issued on the judgment is properly denied.
Wm. W. Flournoy, of De Funiak Springs, for plaintiff in error.
McKay & Withers, of Tampa, for defendant in error.
In an action upon promissory notes providing for the payment of specific sums, and for 'a reasonable attorney's fee,' a plea of the defendant was stricken as frivolous and judgment by default was rendered by the court, and in vacation, on September 14, 1923, the court, upon an inspection of the notes, rendered final judgment for the plaintiff on the promissory notes for the amounts due thereon, and for reasonable attorney fees as provided for in the notes. No writ of error was taken to the judgment.
On April 16, 1924, the court denied motions to vacate the final judgment and stay the execution; the ground of the motion being that the final judgment is void as having been rendered without jurisdiction. Defendant took writ of error to the order denying the motion to vacate the judgment as being void.
Sections 2531, 2620, 2622, and 4854, Revised General Statutes 1920 are as follows:
'2531. The judges of the several courts are hereby authorized and empowered to exercise in vacation any jurisdiction or power they are now authorized and empowered to exercise in term time; but when the exercise of such power shall require the intervention of a jury it shall not be exercised except in cases specially provided, unless all parties agree in writing to waive a jury.
'This section shall not be construed to require any judge to go out of the county in which he may be during vacation.'
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