Smith v. Wilson

• Decision Date: 18 May 1916
• Parties: SMITH v. WILSON.
• Court: Florida Supreme Court

71 So. 919

71 Fla. 624

SMITH v. WILSON.

Florida Supreme Court

May 18, 1916

Rehearing Denied June 14, 1916.

Error to Circuit Court, De Soto County; F. A. Whitney, Judge.

Action by Elizabeth B. Wilson against Norton Smith. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Section 1425 of the General Statutes of 1906, providing for the entry of final judgment upon default, requires a strict conformity to its terms on the part of the clerk of the court, who in entering the final judgment acts merely in a ministerial capacity.

The entry by the clerk of a final judgment upon default should recite the proofs of the claim that were produced and filed that he ascertained from such proofs the amount found to be due, which should be followed by language signifying the entry of a judgment for the amount so assessed or ascertained.

In an action of ejectment, a sheriff's deed, based upon a judgment void upon its face, is inadmissible as a muniment of title.

COUNSEL Brown & Jones, of Arcadia, for plaintiff in error.

John W Burton and L. Grady Burton, both of Arcadia, for defendant in error.

OPINION

ELLIS J.

The defendant in error brought an action of ejectment to recover certain lots of land in Avon Park, De Soto county, from Norton Smith, who is the plaintiff in error here. The plaintiff in the court below claimed title to the lots in controversy under the will of her former husband, Frank T Cullens, who claimed title under a deed from Abbie R. Dodge who claimed under a deed from Andrew L. Pearce, as sheriff of De Soto county, who levied upon and sold the property under an execution which issued out of the circuit court for De Soto county, 'at the suit of the Polk County National Bank, plaintiff, against the Florida Development Company and O. M. Crosby, defendants.'

During the progress of the trial the plaintiff introduced in evidence a certified copy of a judgment in favor of Polk County National Bank, and against Florida Development Company, a corporation, and O. M. Crosby. But to the introduction of this paper in evidence the defendant, Norton Smith, by his attorneys objected, upon several grounds, as follows:

'1. That said judgment was not shown to be a valid judgment.

'2. Because said judgment is void for the reason that the wording of same though it purports to be a final judgment, is nothing more than a default.

'3. Said judgment was entered by the clerk of the court in vacation on a promissory note and the clerk entered judgment for $175.00 as attorney's fees.

'4. For the further reason that said judgment is immaterial and irrelevant.

'5. And because said judgment does not carry the entire record of the case with, and upon, which it is based.'

The copy of the judgment offered in evidence by the plaintiff is in the following form:

'In the Circuit Court of the Sixth Judicial Circuit in and for De Soto County, Florida.

'The Polk County National Bank v. The Florida Development Company, a Corporation Created and Existing under the Laws of the State of Florida, and O. M. Crosby, Whose Christian Name is Unknown to Plaintiff.

'Assumpsit. Damages, $3,000.00.

'The above-styled cause coming on to be further heard on this the 16th day of September, 1895, and it appearing from the returns of the sheriff filed herein that the defendants were duly served according to law; that the plaintiff filed its cause of action in said cause, the same being a promissory note given by said defendant. It also appearing that defendants filed their appearance according to law, but, having failed to plead, answer, or demur, it further appearing that a default judgment was duly entered up against the defendants for want of such pleadings, it is therefore ordered and adjudged that the defendants are due the plaintiff the sum of $1,500 as principal and $50 accrued interest to this date, also $175 attorneys' fee, together with thirteen dollars and eighty-six cents cost in said cause by it expended and that execution issue therefor.

'Witness my hand and official seal at Arcadia, Fla., date above written.

'[Seal.] John H. Alford, Clerk.'

The plaintiff also offered in evidence a paper called a stipulation, which was signed by the attorneys appearing in the case for Norton Smith and in his behalf, whereby it was agreed that the title to the lots in controversy became vested in the Florida Development Company, a corporation, by sufficient deeds of conveyance therein enumerated, beginning with the patent of the United States to the State of Florida, dated February 14, 1880. The last clause of the stipulation is in the following words:

'The defendant further stipulates that there was issued out of the circuit court of De Soto county, Fla., on the 16th day of September, 1895, an execution, sufficient in form and substance, upon a judgment before then found in the circuit court of said county, in the suit of Polk County National Bank, plaintiff, against the Florida Development Company and O. M. Crosby, and that thereon and by virtue thereof, A. L. Pearce, then sheriff of said county, advertised and sold the lands here in question at public sale.'

The defendant's attorneys objected to the reading in evidence of the last paragraph of the stipulation quoted above upon the grounds:

'First, Because a valid judgment has not yet been issued; second, because same is irrelevant and immaterial.'

Both of these objections the court overruled, to which rulings the defendant excepted. A jury was waived by the parties and the issues tried by the judge. Objections were also interposed by the defendant and overruled by the court to the introduction in evidence of the sheriff's deed to Abbie R. Dodge, the latter's deed to Frank Cullens, and a certified copy of the latter's will and probate of same. Those objections being all based upon the alleged invalidity of the judgment against the Florida Development Company and O. M. Crosby in favor of the Polk County National Bank, a certified copy of which had been admitted in evidence over the defendant's objections. These and other rulings of the court constitute the basis of the 13 errors assigned. Only one assignment of error is discussed by the attorneys for plaintiff in error, and that one raises the question of the admissibility in evidence of the certified copy of the judgment in favor of the Polk County National Bank against the Florida Development Company and O. M. Crosby.

The contention is made that the judgment is void because not in due form, and, being void, the proceedings based upon it were without authority of law; that the sheriff's deed to Abbie R. Dodge, therefore, was a nullity, as was her deed to Frank T. Cullens and the latter's devise to the plaintiff of the lands in controversy. The defendant in error insists that the judgment is not void for imperfections in form; that its validity should be tested by its substance and not its shadow; that it clearly adjudged the relation to exist between the plaintiff and defendants as creditor and debtors; adjudged the amount to be due from the defendants to the plaintiff, and that execution should issue therefor. Counsel for defendant in error cite the case of Ponder v. Moseley, 2 Fla. 207, 48 Am. Dec. 194, and Price v. Winter, 15 Fla. 66, in support of...