White v. Crandall
| Decision Date | 13 November 1931 |
| Parties | WHITE v. CRANDALL et al. |
| Court | Florida Supreme Court |
Rehearing Denied by Division B Jan. 7, 1932.
En Banc.
Error to Circuit Court, Broward County; Vincent C. Giblin, Judge.
Action by Charles S. Crandall and Ada M. Crandall, a married woman by her next friend, Charles S. Crandall, against Michael E White. To review a final judgment for the plaintiffs, the defendant brings error.
Reversed and cause remanded with directions.
On Petition for Rehearing.
Syllabus by the Court.
While in procedural matters a wide discretion is accorded the trial court, yet in the absence of anything to indicate trifling with the processes of the court, a final judgment on demurrer to pleas should not in general be rendered the same day an order sustaining a demurrer is filed for record, where the defendant or his counsel has no knowledge or notice of the order sustaining the demurrer without leave to amend, or of the application for final judgment made the same day the order on the demurrer is filed for record.
On Petition for Rehearing.
1. All litigants should have an opportunity to properly formulate and present the issues involved in litigated matters; a trial judge has no right to peremptorily, and without notice to adverse parties, deny litigants the right to interpose and properly formulate defenses to actions in courts of law.
2. Whatever presumptions would otherwise obtain in favor of a judgment are over-thrown by a recital to the effect that the judgment was entered and damages assessed at the instance of the plaintiffs alone, without knowledge of, or notice to, a defendant not in default, who was entitled to be notified of the assessment of damages and to contest the same as to amount if he saw fit.
3. Even in cases of defaults, defendants have the right to contest the question of damages and where defendant is not in default, but judgment is being entered against him on a demurrer sustained to his pleas, he is not only entitled to the right to contest the damages, but to notice of the subsequent proceedings as well, so that he might take proper steps in the form of motions and other proceedings to have his rights recognized and the proper record entries made to enable him to take writ of error, if he so desires.
4. This court can, and will, consider without assignment, such errors as are jurisdictional and fundamental in character.
5. Fundamental errors of law apparent on the face of the record constitute an exception to the rule that errors not assigned or not argued will not be considered by an appellate court or will be treated as abandoned.
6. To enter judgment against a defendant as if he were in default when he is not shown to have been adjudged in default, is a fundamental error which may be considered by an appellate court within the foregoing rule, and the judgment reversed therefor, in order that appropriate proceedings may be taken to have a proper judgment entered, and a proper opportunity afforded the injured party to present such matters as may enable him to develop a record such as will support proper assignments of error, in the event he desires to prosecute a writ of error.
7. As a general rule, defendant who has been refused permission to plead further has the right to tender further pleas for filing in order that they may be considered by the court, and if permission to file them is refused, to have the refusal properly excepted to and made the basis for inclusion in a bill of exceptions as a predicate to appellate consideration and review on writ of error.
8. Notice or knowledge on defendant's part that the court has sustained demurrers to his pleas and proposes to enter final judgment, without permission to plead further, is an essential requirement of law, which it will be error for the court to ignore in entering final judgment.
9. Record before the court held not sufficient to support a presumption in favor of the judgment.
C. L. McCoy, of Lake Worth, and W. F. Finch, of West Palm Beach, for plaintiff in error.
Baxter & Walton, of Fort Lauderdale, for defendants in error.
In an action upon promissory notes a demurrer to the defendant's first set of pleas was sustained and amended pleas were filed and a demurrer thereto was set for hearing June 5, 1929. On June 12, 1929, the court made the following order:
The order was 'filed for record 13th day of June, 1929.' On June 13, 1929, counsel for the plaintiff filed a motion for final judgment upon demurrer, and final judgment was rendered the same day. It does not appear that the proceedings were had in term time. The amended pleas were not stricken as being wholly improper, and further amendment might be appropriate. The order sustaining the demurrer to the amended pleas indicates the defendant's counsel was not present when the order was made, and there is nothing to indicate that the defendant or his counsel had knowledge or notice of the order sustaining the demurrer to the amended pleas, or of the motion for final judgment on demurrer. As the demurrer was sustained 'without leave to amend,' counsel for the defendant should have been notified of the order made June 12th and filed for record June 13th, before final judgment was rendered the same day, on June 13, 1929. While in procedural matters a wide discretion is accorded the trial court, yet in the absence of anything to indicate trifling with the processes of the court, a final judgment on demurrer to pleas should not in general be rendered the same day an order sustaining a demurrer is filed for record, where the defendant or his counsel has no knowledge or notice of the order sustaining the demurrer without leave to amend, or of the application for final judgment made the same day the order on the demurrer is filed fo record.
Reversed.
DAVIS, J., not participating.
On Petition for Rehearing.
The judgment in this case was reversed November 13, 1931, because the court entered final judgment against defendant on sustaining demurrers to pleas, where counsel for defendants had no knowledge of this action and no notice thereof was given.
A petition for rehearing suggests that the opinion reverses the judgment of the lower court solely because of procedural matters which were not assigned as error, or which having been assigned as error, were abandoned or waived by failure to argue the assignments.
The previous opinion is in harmony with the principle of law long established and adhered to by this court, to the effect that all litigants should have an opportunity to properly...
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