Security Finance Co. v. Gentry

• Decision Date: 02 June 1926
• Citation: 91 Fla. 1015,109 So. 220
• Parties: SECURITY FINANCE CO. v. GENTRY et al.
• Court: Florida Supreme Court

109 So. 220

91 Fla. 1015

SECURITY FINANCE CO. v. GENTRY et al.

Florida Supreme Court, Division B.

June 2, 1926

Error to Circuit Court, Escambia County; A. G. Campbell, Judge.

Action by the Security Finance Company against Walter H. Gentry and others, formerly trading as the Home Bakery. An order of the circuit judge in effect denied a motion to set aside an affidavit of the illegality of an execution, and plaintiff brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Clerk's authority is entirely statutory, and his official action, to be binding on others, must be in conformity with statute entry of default in book designated as 'rules judgment docket No. 7' does not comply with statutes which require clerk to keep default docket and enter all defaults in full therein; until default has been entered in default docket 60-day period in which defendant may move to vacate, default does not begin to run (Rev. Gen. St. 1920, § 3076). The clerk's authority is entirely statutory, and his official action, to be binding upon others, must be in conformity with the statutes. The record shows that default in this case was entered in a book designated as 'rules judgment docket No. 7.' This does not comply with the statutes; the statutes require the clerk to keep a 'default docket,' and to enter all defaults in full in such docket. Until the default has been entered in such docket the 60-day period in which a defendant may move to vacate a default does not begin to run.

Clerk of court should not enter final judgment on default where declaration and cause of action attached show action one at law where testimony is necessary to ascertain damages, but proper practice is for such damages to be assessed by jury. The declaration and cause of action attached thereto shows this to be an action at law where testimony is necessary for the ascertainment of damages if any at all are recoverable under the allegations of the declaration. A clerk of the circuit court is not authorized to enter final judgment on default in such cases. The proper practice is for such damages to be assessed by a jury.

COUNSEL

Leroy v. Holsberry and L. V. Trueman, both of Pensacola, for plaintiff in error.

Forsyth Caro, of Pensacola, for defendants in error.

OPINION

BUFORD J.

This case is on writ of error to the circuit court of Escambia county from an order of the circuit judge that in effect denied a motion to set aside an affidavit of illegality of execution. The denial of the motion is in effect a final judgment in the proceedings attacking the execution from which writ of error will lie.

The declaration was in the following language:

'The Security Finance Company, by its attorneys, Leroy V Holsberry and L. V. Trueman, sues the defendants, Walter H. Gentry and Lee E. Gentry and Fred Simms, formerly trading as Home Bakery, for that by paper writing, commonly known as a note, dated April 28, 1923, the said defendant agreed to pay J. D. Anderson ten (10) installments, one due on the 28th of each successive month thereafter, the payments being for twenty-three and 10/100 ($23.10) each, with interest thereon on all of said installments, after maturity, at the rate of (10) per cent. per annum; and that the said note was signed by the said J. D. Anderson to the plaintiff, the Security Finance Company, and the latter was the owner thereof at and before the institution of this suit.

'That the said defendants defaulted in the payment of the installments on said note becoming due on the 28th day of June, A. D. 1923, and, said installments remaining unpaid for more than three (3) days after the maturity thereof, under the terms of said note, the residue of said installments became due and payable forthwith; and that the said defendants having so defaulted, and all the installments of said note having become due by reason of said default, said truck was surrendered to the plaintiff, voluntarily, and sold for the account of the defendants, and the amount thereof was credited first to the extinguishment of the expenses incurred in making said sale and in carrying said indebtedness, and the residue thereof on said note, leaving a balance due on said note of one hundred eleven and 70/100 ($111.70) dollars, which is more particularly shown by a statement attached hereto. A copy of said note upon which this suit is based, is attached hereto, marked Exhibit A.

'It further provided in said note that the makers, indorsers and persons thereafter becoming liable each agree to pay all costs of collection or securing, or attempting to collect or secure said note, including an attorney's fee of fifteen ($15) dollars, and fifteen (15) per cent. of the amount so collected or secured, whether the same be collected or secured by suit or otherwise; and that it became and was necessary for the plaintiff to place this note in the hands of the attorneys for the plaintiff to institute this suit for the collection of said indebtedness, and, by reason thereof, under the terms of said note, the defendants became and are liable for an attorney's fee of fifteen ($15) dollars and fifteen (15) per cent. of the amount of said indebtedness.

'Yet, notwithstanding the premises, and notwithstanding the said note being long past due, the said defendants have not paid the same, nor any part thereof, though often requested so to do, whereby the plaintiff has become entitled to sue the said defendants for the principal amount of said balance due, together with interest, cost, and attorney's fee, and the plaintiff claims damages in the sum of $250.

'Wherefore it sues.

Leroy V. Holsberry,

'L. V. Trueman,

'Attorneys for Plaintiff.

'Exhibit A.

'$231.00.

'Pensacola, Florida, 4/28, 1923.

For value received, I promise to pay to the order of J. D. Anderson two hundred thirty-one dollars, payable in installments as indicated in schedule, with interest on each installment after its maturity at the rate of 10 per cent. per annum.

'If any installment of this note remains unpaid for more than three days after its maturity, the entire amount unpaid shall become due and payable forthwith, at the election of the holder of the note. This note is given covering deferred installments under conditional sales contract of even date for a motor vehicle. All makers, indorsers, and persons now or hereafter becoming parties hereto, hereby waive demand and protest, and notice of demand, nonpayment, and protest. And they each severally agree to pay all costs of collection or securing, or attempting to collect or secure this note, including an attorney's fee of $15 and 15 per cent. of the amount so collected or secured, whether the same be collected or secured by suit or otherwise. And all indorsers and sureties agree that this note, or any installment thereof, may, in whole or in part, be extended or renewed from time to time, without notice to them and without release of their liability hereon. This note is negotiable and payable at any bank.

'Home Bakery, W. H. Gentry. [Seal.]

'Schedule of Payments.

$23.10 one month after date. Paid 6/5.

$23.10 two months after date.

$23.10 three months after date.

$23.10 four months after date.

$23.10 five months after date.

$23.10 six months after date.

$23.10 seven months after date.

$23.10 eight months after date.

$23.10 nine months after date.

$23.10 ten months after date.'

Indorsements on back:

'Sold to Security Finance Co., without recourse on me.

J. D. Anderson.

'[1¢ internal revenue stamps canceled '4/30/23 W. H. G.']

12/19 Paid by J. L. Burke Cash ... 50.00 " " " " " Note .. 103.50 ------ 153.50

1923. 10-23. To paid Journal, advertising sale of truck ................. $ 3 60 12-19. To paid salesman commission ...... 12 00 12-20. To paid carrying charges on resale of truck ................. 10 00 12-20. To paid repairs on truck ......... 17 42 12-20. To paid earns premium on insurance ........................ 9 20 12-19. By sale of truck ........................ $153 50 12-20. To balance credited on note ..... 103 28 ------- ------- $153 50 $153 50 Amount of purchase money remaining unpaid at time of default ............. 207 90 Interest thereon at the time of sale ..... 4 90 ------- $212 80 Credit--sale of truck balance .......... 103 28 ------- $109 52 Interest on balance to date of suit ...... 2 18 ------- Total due at time of institution of suit .................................. $111 07

'State of Florida, County of Escambia--ss.:

'Hunter Brown,...