Parker v. Dekle

• Decision Date: 23 June 1903
• Citation: 35 So. 4,46 Fla. 452
• Parties: PARKER v. DEKLE.
• Court: Florida Supreme Court

35 So. 4

46 Fla. 452

PARKER v. DEKLE.

Florida Supreme Court, Division A.

June 23, 1903

Error to Circuit Court, Manatee County; Joseph B. Wall, Judge.

Action by Lee Dekle against T. B. Parker. Judgment for plaintiff and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. In actions at law, while, generally speaking, the consideration of the appellate court will be confined to the errors assigned and argued by the plaintiff in error, yet to this rule there are certain exceptions. Where a jurisdictional or other fundamental error of law is apparent on the face of the record itself, such error may be considered by the appellate court, though it is not assigned.

2. The statute (section 1035, Rev. St. 1892) that gives authority to clerks to enter final judgments contemplates that the clerk can enter a final judgment after default only in those cases where the cause of action is purely and simply a money demand, founded upon a contract for the payment of money only. In cases where extrinsic evidence dehors the contract sued upon is necessary to ascertain the amount to be recovered, the clerk has no authority to entertain such evidence, or to found a final judgment thereon.

3. Upon a hearing in damages, after the overruling or sustaining of a demurrer, the case stands, with reference to the evidence necessary for the plaintiff and admissible for the defendant prescisely as it would have stood upon a default.

4. To ascertain what would be a reasonable attorney's fee in any case requires the introduction of testimony, and to enter up a judgment including attorney's fees, unless the amount of said attorney's fees is definitely provided for or specified in the cause of action, without proof as to what would constitute a reasonable attorney's fee, is error.

5. The proper practice in an action at law, where testimony is necessary for the ascertainment of damages, is to have the assessment of damages in such case made by a jury.

COUNSEL Langley & Singeltary, for plaintiff in error.

John P Wall, for defendant in error.

OPINION

SHACKLEFORD J.

An action of assumpsit upon a promissory note was instituted by defendant in error in the Manatee county circuit court against plaintiff in error, which resulted in judgment for defendant in error in the sum of $232.50 damages and $3.93 costs. Plaintiff in error seeks a reversal of this judgment by writ of error in this court, and assigns two errors: First, that the court erred in overruling defendant's demurrer to plaintiff's declaration; and second, that the court erred in sustaining plaintiff's demurrer to defendant's plea.

We deem it unnecessary to set forth the pleadings, or to discuss these two errors assigned. Suffice it to say that an examination thereof discloses that they are utterly without merit. However, the record discloses a fundamental error therein in the judgment itself, which we feel that it is incumbent upon us to notice of our own motion. In so doing we are not unmindful of the fact that, as was said by this court in Dell v. Marvin, 41 Fla. 221, 26 So. 188, 79 Am. St. Rep. 171, 45 L. R. A. 201, 'in actions at law the consideration of the appellate court will be confined to the errors assigned and argued by the plaintiff in error.' This is true as a general and abstract principle of law, and is correct as applied in the case then for consideration before this court. To this general rule, however, there are certain exceptions. Where the record itself discloses a jurisdictional or other fundamental error, such as that the court below, in entering the judgment, was without jurisdiction, or that the judgment is void on its face, such matter may be considered by this court, even though no error be assigned expressly presenting same.

We have held that in an equity suit 'a jurisdictional matter will be considered by this court, even though the same may not be questioned by the pleadings, or expressly presented.' McMillan v. Wiley, 45 Fla. ----, 33 So. 993; Trustees I. I. Fund of Florida v. Gleason, 39 Fla. 771, 23 So. 539. We know of no reason why a like rule should not prevail in actions at law. In Stowe v. The Mapes Formula & Peruvian Guano Company, 21 Fla. 153, this court held that, where no errors had been assigned, 'and, considering the record of the judgment of the circuit court, there seems to be no error thereon,' on motion the judgment would be affirmed, with costs; thereby implying that an error, if fundamental or jurisdictional, appearing on the face of the record of the judgment, could be considered by the court. However, this must be an error of law, and not an error of fact. Jordan v. Petty, 5 Fla. 326, text, 332. We are of the opinion that the weight of authority is to the effect that, where a jurisdictional or other fundamental error of law is apparent on the face of the record itself, such error may be considered by the appellate court, though it is not assigned. Ives v. Finch, 28 Conn. 112; Crandall v. State, 10 Conn. 339, text, 371; Woodruff v. County of Douglass, 17 Or. 314, 21 P. 49; Schiff v. Solomon, 57 Md. 572; Boarman v. Patterson, 1 Gill, 372; St. Joseph Manufacturing Company v. Harrington, 53 Iowa, 380, 5 N.W. 568; McDaniel v. Moody, 3 Stew. 314; Miller v. Sunde, 1 N.D. 1, 44 N.W. 301; Huntsman v. Linville River Lumber Co., 122 N.C. 583, 29 S.E. 838; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; Coburne v. Poe, 40 Tex. 410; Lee v. Dozier, 40 Miss. 477; Clark v. Bayer, 32 Ohio St. 299, text 304, 30 Am. Rep. 593; Castledine v. Mundy, 4 Barn. & Adol. 90. Also, see 2 Ency. of Pl. & Pr. 928; 2 Cyc. 984.

The proper practice in a case where a jurisdictional or fundamental error is found in the record, whether the same be assigned or not, is for the appellate court to reverse the judgment entered in such case. In addition to the authorities above cited, see the following, in which it was held that a void judgment, or a judgment rendered without authority, should be reversed: Glens Falls Ins. Co. v. Porter, 44 Fla. ----, 33 So. 473; Petty v. Durall, 4 G. Greene, 120; United States v. Nourse, 6 Pet. 470, 8 L.Ed. 467; Jordan v. Dennis, 7 Metc. (Mass.) 590; Borough of Stonington v. States, 31 Conn. 213; Cooper v. American Central Ins. Co., 3 Colo. 318; Castleberry v. State, 68 Ga. 49, Gray v. Thrasher, 104 Mass. 373; Abrams v. Jones, 4 Wis. 806.

It seems that such a judgment as the one entered in the instant case would be held void even on collateral attack. Wilson v. Sparkman, 17 Fla. 871, 35 Am. Rep. 110; Einstein v. Davidson, 35 Fla. 342, 17 So. 563. Also, see section 1277, Rev. St. 1892, which makes it the duty of this court 'to examine the record, to reverse or affirm the judgment, sentence or decree of the court below, or to give such judgment, sentence or decree as the court below ought to have given, or as to it may appear according to law.'

As has been said, a promissory note formed the cause of action in the instant case. The record discloses that said note provided for the payment of 'a reasonable attorney's fee' in the event it became necessary to collect said note through an attorney. On sustaining the demurrer to defendant's pleas, the court below at chambers rendered judgment against the defendant, and instructed the clerk to assess the plaintiff's damages and costs, and to enter up final judgment therefor. Plaintiff's attorneys produced and filed with the clerk said original promissory note and an ex parte affidavit from a practicing attorney to the effect that $40 would be a reasonable attorney's fee in said action, whereupon said clerk, not in term time, but in vacation, entered up against the defendant judgment in favor of the plaintiff for the sum of $232.50. Said judgment entry of the clerk, on the face of it, shows that he acted on testimony in a case in which he had no authority to act, in that he undertook to ascertain from an affidavit of a practicing attorney what was a reasonable attorney's fee, and lumped together in the judgment whatever he judicially determined was due as a reasonable attorney's fee with the amount he calculated to be due on the note for principal and interest. This action of the clerk was clearly erroneous and without authority.

In Glens Falls Ins. Co. v. Porter, supra, this court held that 'The statute [section 1035, Rev. St. 1892] that gives authority...