Pan Am. World Airways, Inc. v. Gregory, 57-3
| Decision Date | 15 August 1957 |
| Docket Number | No. 57-3,57-3 |
| Citation | 96 So.2d 669 |
| Parties | PAN AMERICAN WORLD AIRWAYS, Inc., a New York Corporation, Appellant, v. William George GREGORY, Appellee. |
| Court | Florida District Court of Appeals |
Brown, Dean, Adams & Fischer, Miami, for appellant.
Alexander S. Gordon, Miami Beach, for appellee.
This is an appeal from a final judgment based upon a default entered for failure to file an answer. The complaint was for personal injuries and was tried upon the issue of damages without docketing for trial or other notice to the defendant. The judgment is vacated and the cause remanded with directions.
A brief statement of the chronology of the cause follows. The plaintiff, who is the appellee here, filed a complaint seeking the recovery of damages for personal injuries sustained while in the employ of the defendant. The defendant filed notice of filing of petition for removal to the federal court. In this latter court, defendant's answer and plaintiff's reply thereto were served and filed. The federal court, upon motion of the plaintiff, remanded the cause to the state court on April 13, 1956. Under the practice in the federal court the clerk did not transmit the answer and reply thereto to the state court. The defendant took no action to file in the state court his answer previously served. Thereafter the plaintiff proceeded to take a deposition in the state court and defendant was represented at said deposition by its counsel of record. Upon the 13th day of June counsel for the plaintiff filed a praecipe for default which contained the following certification: 'I hereby certify that defendant has not filed answer or other pleading directed to the complaint heretofore filed by the plaintiff.' The clerk of the court entered the default upon the praecipe and certificate on the 13th day of June 1956. Thereafter, without further proceedings the cause was tried on October 3, 1956 before a jury and damages were assessed at fifty thousand dollars.
On October 8th defendant filed its sworn motion to set aside the default judgment. This motion set forth a brief statement of the history of the proceedings, including the service and filing of an answer in the federal court. Defendant attached to the motion copy of its answer and a copy of the plaintiff's reply thereto; defendant certified that the motion was not made for the purpose of delay and offered to proceed with the trial of the cause at the earliest possible trial date. The answer and reply tendered an issue as to the validity of a release previously executed by the plaintiff for a consideration.
A hearing was had upon the motion to set aside default judgment. The principal argument advanced by counsel for the defendant was counsel's belief that the defendant had complied with the requirements of the Florida Rules of Civil Procedure by serving an answer on the plaintiff and filing it in the federal court. The court denied the motion.
Two separate matters must be considered in this appeal. First, was the default properly entered? Second, was the defendant entitled to notice on the issue of damages after default?
In a consideration of the propriety of the clerk's action in entering the default we must consider the specific Florida Rules of Civil Procedure involved. They are Rule 2.9, Judgment-Default, 31 F.S.A.; Rule 1.4, Service of Pleadings and Papers and Rule 1.11, Defenses, 30 F.S.A. The salient portions of these rules are set forth with our emphasis supplied.
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The clerk is an officer of the court whose duties are ministerial and as such he does not exercise any discretion. State ex rel. Druissi v. Almand, Fla.1954, 75 So.2d 905. His power to enter a default must clearly appear from the rules and the record to which they are applied. Security Finance Co. v. Gentry, 91 Fla. 1015, 109 So. 220. The rules above quoted clearly designate failure to serve a pleading as the basis for default. The record reveals, as the basis for the clerk's entry of default, a certificate of Counsel that the defendant had not filed an answer or other pleading directed to the complaint. This certificate was meaningless since the clerk can readily determine from his own records whether a pleading has been filed. The rules should not be construed to require the party moving for default to make a meaningless certificate in support of his application to the clerk for the entry of default.
It is equally true that all the rules bearing on the method of presenting pleadings to the court should be construed together. It therefore follows that the mere service of a pleading is not enough to present the pleading to the court. An additional act is necessary and an attorney has not presented his client's pleading to the court until he has complied with that portion of Rule 1.4(d), supra, providing that the pleading shall be filed with the court. Without exploring the possibility of an action by the court based upon a failure to comply with Rule 1.4(d), we find that the clerk was without authority to enter a default where an answer had been served but not filed in the court of which he was the clerk.
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