St. Lucie Estates, Inc. v. Palm Beach Plumbing Supply Co.

• Decision Date: 17 May 1930
• Citation: 133 So. 841,101 Fla. 205
• Parties: ST. LUCIE ESTATES, Inc. v. PALM BEACH PLUMBING SUPPLY CO.
• Court: Florida Supreme Court

133 So. 841

101 Fla. 205

ST. LUCIE ESTATES, Inc. v. PALM BEACH PLUMBING SUPPLY CO.

Florida Supreme Court

May 17, 1930

On Rehearing, April 15, 1931.

Commissioners' Decision.

Error to Circuit Court, Martin County; Elwyn Thomas, Judge.

Action by the Palm Beach Plumbing Supply Company against the St Lucie Estates, Incorporated, and another. Judgment for plaintiff, and from an order denying a motion by defendant named to set aside judgment and stay execution, defendant named brings error.

Reversed.

Syllabus by the Court.

SYLLABUS

A case should not be affirmed where the transcript shows many discrepancies, irregularities, and omissions which in the ultimate would not only be a dangerous precedent but may be a denial of substantial justice.

Under our statutes (Comp. Gen. Laws 1927, § 4229) a suit at law is begun by filing a praecipe for summons stating the names of parties, nature of the action, and amount of debt or damages for which plaintiff sues.

A judgment by default entitles the plaintiff to the relief for which a proper predicate has been laid in the declaration.

It is necessary that a declaration should declare specifically upon a written promise to pay the debt of another, and where the proof of claim and final judgment is based upon an open account the judgment will be reversed.

The clerk acts ministerially in entering final judgments and the law requires strict conformity to statutory terms; and a plaintiff must see to the regularity of his pleadings so as to entitle him to such judgment upon an inspection of the record.

The limitation in which a default or judgment may be opened does not apply to defaults or judgments entered by a clerk without legal authority.

Where an attorney without authority enters an appearance for a defendant, the appearance should be set aside on motion before judgment; but if a judgment has been rendered against the defendant on such an unauthorized appearance, the court should upon motion vacate the judgment.

Where a clerk enters defendant's appearance by an attorney who was unauthorized, the clerk's entry could not bind the attorney or the party.

On Petition for Rehearing.

Exhibits or causes of action attached to a declaration are no part of it, unless made so by apt words in the declaration itself.

Where the affidavit of claim is based upon an open account, a verified copy of the account of original entry or other legal evidence must be produced in proof to authorize the entry of a final judgment on default by the clerk.

An affidavit of claim, in the absence of other proper evidence purporting to be based upon an open account, not produced or attached, is not sufficient basis upon which a clerk may enter final judgment.

Where the judgment entered by a clerk is based upon a 'written instrument,' the record must show that the original was 'produced in proof.'

Where proposed pleas, offered with a motion to open a default, are not exhibited in the transcript, the presumption arises that the trial court ruled properly thereon.

COUNSEL

Dame & Rogers, of Ft. Pierce, for plaintiff in error.

Edwin Brobston, of Tampa, for defendant in error.

OPINION

ANDREWS C.

A final judgment was, pursuant to a default, entered by the clerk of the circuit court in favor of defendant in error, as plaintiff below, against St. Lucie Estates, Inc., and Pelican Hotel Company, as defendants below. The St. Lucie Estates Inc., in its own behalf filed a motion to set aside the judgment, also motion to stay execution, both of which were denied, and the case is here for review upon writ of error taken alone by the St. Lucie Estates, Inc., for convenience herein referred to as defendant.

Ordinarily, in a case coming through a similar procedure, we would be inclined to affirm, as in the final judgment substantial justice may have been done; however, the transcript presents so many discrepancies, irregularities, and omissions that in the ultimate or sum total, to affirm would be a dangerous precedent for future consideration, if not a denial of substantial rights.

Only the more serious irregularities will be briefly referred to herein.

The assignment of error principally relied upon is that the trial court erred in its order of April 14, 1928, denying the motion to open default and set aside the judgment.

Plaintiff's declaration in four counts, filed on June 6, 1926, purports to name and sue both the St. Lucie Estates, Inc., and the Pelican Hotel Company, though the latter company is not referred to or mentioned in the declaration. The allegations of the first or special count are based upon a guaranty, made by W. I. Shuman, treasurer of St. Lucie Estates, Inc., of the payment for material furnished and delivered to F. R. Nott, a contractor, in the amount of $840.45, to be used upon the Pelican Hotel, in which the former company is said to have a part interest. There is no allegation or indication that the hotel company ever had anything to do with the purchase of the material.

It is further alleged that on November 12, 1926, a payment of $150 was made by St. Lucie Estates, Inc., leaving $690.45 with interest thereon due. The motion filed April 10, 1928, to vacate and set aside the judgment, verified by oath, alleges that a default and final judgment was entered against defendants on September 6, 1927, but that upon motion of defendant the same was set aside September 20, 1927, and that attorney for plaintiff informed defendant St. Lucie Estates, Inc., that no further claims would be made against said company. This allegation was not denied or refuted by plaintiff. The record, however, shows that on November 23, 1927, an alias summons was issued upon a praecipe of plaintiff made returnable to December rule day, which gives the damages as $500 instead of $1,000 as evidenced by the declaration, and it does not appear that a new or amended declaration was filed. Section 4229, Compiled General Laws of Florida, 1927, provides that a suit at law is begun by filing a praecipe stating names of parties, nature of the action, and the 'amount of the debt or damages' for which the plaintiff sues. Branch v. Branch, 6 Fla. 314; McKay v. Friebele, 8 Fla. 21; McMillon v. Harrison, 66 Fla. 200, 63 So. 427, 49 L.R.A. (N.S.) 946.

The said motion to vacate alleges that while no service had been made upon the defendant, an attorney of Stuart, not employed by defendant and without the knowledge or request of defendant, filed appearance on the December rule day, as an alleged friendly precaution; that defendant knew nothing of the reinstitution of the suit and that there was some mistake; that the attorney promised to withdraw the appearance, but in the meantime a default and final judgment was entered, whereupon said attorney filed a motion unsupported by oath to have same set aside, which the court denied. The record shows that upon said default being entered, the plaintiff filed an 'affidavit of claim' with the clerk as a basis for entry of final judgment, wherein it is stated that 'the account is hereto attached and marked 'A." No verified account appears to have been attached, nor was there proof attached or statement presented in the affidavit as to the St. Lucie Estates, Inc., guaranteeing the bill for F. R. Nott, as alleged in the declaration. Copies of both appear as exhibits to the original declaration. Thereupon final judgment was entered by the clerk on February 21, 1928, against both the Pelican Hotel Company, and St. Lucie Estates, Inc., it 'appearing by affidavit of plaintiff, duly executed (no statement that it was 'filed' that there is now owing and due from the above defendants to plaintiff herein the sum of $690.45, as principal, $80.00 interest, and $7.50 as costs herein.'

No reference is made in the 'affidavit of claim' or the judgment as to defendant's guaranty of the payment for the material furnished Mr. Nott. The letter attached to the declaration which undertook to guarantee the account reads as follows:

'St. Lucie Estates, Inc.

'Restricted Residential Subdivision

'On the St. Lucie River.

'Stuart, Fla.

'June 15, 1926

'Palm Beach Plumbing Supply Co.,

'West Palm Beach, Florida.

'Gentlemen:

'St. Lucie Estates, Inc. own 75% of the stock in the Pelican Hotel Company and are completing the addition to the building on which Mr. Frank R. Nott has the plumbing contract. Funds with which we will make settlement for this additional work will not be available for about 60 days. We would therefore appreciate your extending credit for the amount of the attached bill, $840.55, to Mr. Nott and will guarantee payment of same promptly at the end of the 60 period.

'Statement of St. Lucie Estates, Inc. is attached and copies of letters from our local bankers as to our credit standing with which I think you are already to some extent familiar.

_________________________________ 'Very truly yours, St. Lucie Estates, Inc.

_________________________________ 'W. I. Shuman,

_________________________________ Treasurer.'

'WIS:N

'ENC.

The judgment was based upon an open account, while as a matter of fact the suit against St. Lucie Estates was based upon the guaranty of the account of F. R. Nott, the contractor. Section 4288, Compiled General Laws of Florida 1927, provides that in a suit upon a 'written instrument,' upon default, the clerk shall assess the amount which the plaintiff is entitled to recover, on 'the production and filing of such instrument.' The suit against the defendant St. Lucie Estate is based on a 'written instrument.' The proofs, being based upon an open account, might have been valid under one of the common counts of the declaration as against F. R. Nott, had he been sued or perhaps against the Pelican Hotel Company for...