Register v. Pringle Bros.

• Court: Florida Supreme Court
• Writing for the Court: [58 Fla. 357] SHACKLEFORD, J.
• Citation: Register v. Pringle Bros., 58 Fla. 355, 50 So. 584 (Fla. 1909)
• Decision Date: 26 October 1909
• Parties: REGISTER et al. v. PRINGLE BROS.

50 So. 584

58 Fla. 355

REGISTER et al. v. PRINGLE BROS.

Florida Supreme Court, Division A.

October 26, 1909

Headnotes Filed November 29, 1909.

Error to Circuit Court, Taylor County; R. M. Call, Judge.

Action by Pringle Bros., a corporation, against D. S. Register and another, copartners. Judgment for plaintiff, and defendants bring error. Affirmed.

Syllabus by the Court

SYLLABUS

Where the defendant in an action at law waits until the rule day on which he is required to plead to file a motion for a more definite bill of particulars, and such motion is of such a character that the plaintiff is justified in treating it as a nullity, he may disregard it, and cause the clerk to enter a default for failure to plead or demur.

The object of section 1449 of the General Statutes of 1906, and rule 14 of Circuit Court Rules in Common-Law Actions (37 South. vii) in requiring the cause of action, or a copy thereof, in the class of instruments designated therein, to be filed with the declaration, is to have the plaintiff apprise the defendant of the nature and extent of the cause of action alleged against him, in order that he may plead thereto with greater certainty.

In an action of assumpsit, brought by a wholesale merchant against a retail merchant upon an open account, wherein the declaration is in the usual form in such cases, containing the common counts, and the copy of the cause of action attached thereto consists of an invoice or itemized bill or account in the form customarily used between wholesale and retail merchants, the plaintiff is justified in disregarding a motion filed by the defendant for a more definite bill of particulars, on the ground that the bill of particulars so filed is too indefinite, vague, and uncertain to enable the defendant to plead to the declaration, and in treating such motion as a nullity, especially when the same is not filed until the rule day on which the defendant is required to plead, and in causing the clerk to enter a default for failure to plead or demur.

The practice of waiting until the very day on which a plea or demurrer is due to file a motion for a more definite bill of particulars is disapproved. In furtherance of justice, such motions should be filed and called up for disposition as early as practicable.

While section 1425 of the General Statutes of 1906, authorizing the entry of a final judgment by the clerk of the court after a default, must be strictly complied with, where it affirmatively appears on the face of such final judgment that proof was produced before such clerk, and also what that proof was, such judgment is not voidable by reason of the fact that the affidavit to the account, upon which proof such judgment was entered, was made prior to the date of the default.

COUNSEL W. B. Davis, for plaintiffs in error.

Hendry & McKinnon, for defendant in error.

OPINION

SHACKLEFORD, J.

The defendant in error brought an action of assumpsit against the plaintiffs in error in the circuit court for Taylor county. The declaration was filed on the 6th day of January, 1908 but service was not had on the defendants, until the 3d day of February, 1908. With the declaration, as the cause of action, was filed an itemized account of goods, wares, and merchandise alleged to have been sold by plaintiff to defendants, and for the price of which the action was brought. The affidavit of the secretary of the plaintiff corporation, dated the 30th day of September, 1907, was attached to the account. On the 2d day of March, 1908, the defendants entered their appearance, and on the 6th day of April, 1908, filed a motion for a more definite bill of particulars, to which motion was attached the following affidavit:

'Before me on this day personally came W. B. Davis, and he, being by me first duly sworn, says that he has examined the bill of particulars filed and attached to plaintiff's declaration in the foregoing cause; that he, affiant, is of counsel for defendants in said cause, and that said bill of particulars is so indefinite, vague, and uncertain, in that it does not show the amount of the articles purchased, the value of the articles, and such other things as are required to be shown to make said bill of particulars definite and sufficient for defendants to plead and answer to the declaration filed in said cause.

'W. B. Davis.

'Sworn to and subscribed before me this 6th day of April, A. D. 1908.

'[Seal.]

John C. Calhoun, Clerk,

'By Roscoe E. Lee, D. C.'

On the 1st day of June, 1908, the plaintiff filed a praecipe for default, and on the same day a default judgment was entered by the clerk of said court. On the 21st day of August, 1908, the following order for a final judgment was made:

'The foregoing cause came on this day to be heard upon motion of plaintiff's attorneys for a final judgment; and it appearing that a default judgment has been regularly entered in said cause against the defendants on rule day in June, 1908, and that Hon. B. H. Palmer, judge of said court, is now absent from the state of Florida, it is, therefore, thereupon ordered and adjudged that the clerk of said court, upon the filing of proofs of claim sued upon as required by statute in such case, enter a final judgment against the said defendants in said cause.

'Done and ordered at Jacksonville, Florida, this 21st day of August, 1908.

'R. M. Call,

'Judge 4th Judicial Circuit, State of Florida.'

On the 1st day of August, 1908, the following final judgment was entered by the clerk:

'The defendants having been adjudged on the 1st day of June, 1908, to be in default for want of plea or demurrer, or other proper pleading, to the declaration in this cause, and the plaintiff having moved for final judgment consequent upon such default, and the judge of the Fourth judicial circuit of Florida, in the absence from the state of the judge of this court, by his order, dated August 21, 1908, directed that said final judgment be entered herein, and the plaintiff having produced and filed the account sued upon, duly proven, and the court having ascertained the amount which the plaintiff is entitled to recover upon the open account sued upon by affidavit made by Geo. T. Radcliff, Jr., and filed herein, and found the same to be $884.41, it is now, therefore, considered by the court that the said plaintiff do recover of the said defendants the said sum of $884.41, as principal and interest, and the further sum of $6.71 as costs.

'Done this 1st day of Sept. 1908.

'[Seal.]

John C. Calhoun,

'Clerk Circuit Court, Taylor Co., Fla.

'Entered, filed, and recorded in office this 1st day of Sept. A. D. 1908.

'John C. Calhoun, Clerk.

'The above judgment was entered and rendered upon the following proof:

'State of South Carolina, County of Charleston.

'Personally appeared before me, Geo. T. Radcliff, Jr., who on oath says that he is secretary of Pringle Brothers, of Charleston state of South Carolina, and that the attached claim against D. S. Register & Co. Perry, Fla., amounting to eight hundred thirty-nine and 27/100 dollars ($839.27), is just, true, and correct, and...