Opinion
Opinion filed May 17, 1930.
A writ of error to the Circuit Court for Martin County; Elwyn Thomas, Judge.
Reversed.
Dame Rogers, for Plaintiff in Error;
Edwin Brobston, for Defendant in Error.
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 Co., 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 $150.00 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 $500.00 instead of $1000.00 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.
The said motion to vacate alleges that while no service had been made upon the defendant, that 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 the 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 Co., 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 Estates, 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 whom the material was furnished, but neither the account, nor the letter attached to the declaration shows that the St. Lucie Estates Inc. is liable, other than as guarantor of the account.
A judgment by default entitles the plaintiff to the relief for which a proper predicate has been laid in the declaration. North Am. Accident Ins. Co. v. Moreland, 60 Fla. 153, 53 So. 635.
It is necessary to declare specially on a promise to pay or answer for the debt of a third person. West v. Grainger, 46 Fla. 257, 35 So. 91. The declaration declared upon the written promise to pay the debt of F. R. Nott, while the proof of claim and final judgment is based upon an open account for goods bought and delivered to Mr. Nott for the use of the Pelican Hotel Co.
The above statute requires strict conformity to its terms on the part of the clerk entering the final judgment, who acts merely in a ministerial capacity. Smith v. Wilson, 71 Fla. 624, 71 So. 919; Daniell v. Campbell, 88 Fla. 63, 101 So. 35. A plaintiff is bound to see to the regularity of his judgment and that his declaration and pleadings are correct at law, so as to entitle him to such judgment upon an inspection of the record. Wood Co. v. Bank of State of Ga. 1 Fla. 378.
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. Mickler v. Reddick, 38 Fla. 341, 21 So. 286; Ex parte Jones, 92 Fla. 1015, 110 So. 532.
One of the questions raised by the motion to set aside the final judgment, which motion was verified by oath and not denied, sets up that defendant was never served with process and did not know of the reinstitution of the suit; that plaintiff's attorney advised defendant that no further claims would be made; that attorney, John J. Moore, filed the appearance without defendant's knowledge, understanding, employment or otherwise; that the defendant understood the unauthorized appearance would be withdrawn; that in the meantime a judgment was entered thereon, whereupon said attorney advised defendant he would have the judgment set aside and did file a motion for that purpose without supporting oath or affidavits, which motion was denied.
The circumstances of the whole proceedings appear to concur with the record and the sworn motion asking for the setting aside of the judgment, filed by the regularly retained attorneys of defendant, on April 10, 1928, and the conclusion is reached that the action of the attorney who filed the appearance, was without authority or knowledge of defendant.
The defendant not having been served, the appearance was at best only a voluntary appearance, and it could not be voluntary without the knowledge or authority of the defendant.
In the case of Budd v. Gamble, 13 Fla. 265, it was said:
"No legal service of the summons was made upon defendant; but an unauthorized attorney entered an appearance for defendant at the return of the summons, and defendant alleges that he had no knowledge of the existence of the judgment until twenty years after it was entered."
Under the unusual circumstances in that case, it was held that where the statute of limitations has run against a note, equity will not relieve against a judgment thereon which was entered on the unauthorized appearance of an attorney, but that fraud or a meritorious defense must be shown. In the present case, the motion sets up that a meritorious plea was presented and an offer to go to trial on the plea immediately. The record does not show this, but it is set up by oath and not denied.
"Where an attorney without authority enters an appearance for a defendant, the appearance should be set aside on motion before judgment. If a judgment has been rendered against the defendant on such an unauthorized appearance, the court should, upon motion, vacate the judgment." 2 R.C.L. 326; 33 C. J. 1096.
It was held in the case of Tidwell v. Witherspoon, 18 Fla. 282, that where a clerk has entered defendant's appearance by an attorney who was unauthorized, the Clerk's entry could not bind the attorney or the party.
We note the fact that a motion was filed by the said attorney to set aside the judgment which would appear to counter the allegation of defendant that the appearance was filed without authority and repudiated after knowledge of it, but the motion was not sworn to by anyone and the facts stated therein were without verity and thus it was properly overruled by the court. It appears more likely that the attorney was undertaking to comply with his promise to have the judgment set aside which he had wrongfully, though with apparently good intentions, caused to be entered.
The judgment should be reversed.
The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and adjudged by the Court that the judgment of the Court below should be, and the same is hereby, reversed.
WHITFIELD, ELLIS, BROWN AND BUFORD, J.J., concur.
STRUM, J., concurs in the conclusion.
TERRELL, C.J., not participating.
Opinion on rehearing filed April 15, 1931.
As suggested by the motion for rehearing, there is at page two of the opinion filed in this case on May 17, 1930, a discrepancy wherein it is stated that the declaration 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." A more correct statement would have been that in the inducement, the declaration alleges that plaintiff "sues the St. Lucie Estates, Inc., a Florida Corporation, and the Pelican Hotel Company, a Florida Corporation;" then follows the first special count suing only the St. Lucie Estates Inc., upon its guaranty to pay the amount in question. Common count two "claims money payable" (amount named) by the "defendants;" the third count "claims" $690.45 and interest thereon found to be due from the "defendant" upon account stated, and the fourth "claims" a similar amount for work done and materials furnished by the plaintiffs for "defendants" at their request.
It is noted that special count one against the St. Lucie Estates alone, makes exhibits "A" to "H" inclusive a part of the declaration, and that the common counts 2, 3 and 4 of the declaration recites in the margin Bill of Particulars for counts 2, 3 and 4 is Exhibit "G." The exhibit is no part of either of the three last counts. Davant v. Weeks, 78 Fla. 175, 82 So. 804. Exhibits attached to declaration can only be made part thereof by use of apt words in the pleading itself. Strout Farm Agency v. Hollingsworth, 92 Fla. 673, 110 So. 267.
The "affidavit of claim" executed before a Notary Public by M. S. Hendry, credit manager of plaintiff company bases the claim upon the "account against" both defendants "a true and correct copy of the books of original entry" hereto attached marked "exhibit A." The record does not show any exhibit attached to claim affidavit. Exhibit "A", attached to the declaration, is a letter alleged to have been written by the St. Lucie Estates Inc., guaranteeing the payment and is applicable only to the first count, and therefore is not the basis of the cause of action named in the claim affidavit and judgment, nor is it applicable to either of the three common counts.
While exhibit "G", as a "bill of particulars," appears to be a copy of an "invoice" or account, indicating that the goods were "sold to" St. Lucie Estates Inc., exhibit "G" also shows on its face that the material was "furnished for the Pelican Hotel" per list furnished by F. R. Nott, and "guaranteed by your (St. Lucie Estates') letter 6/15, 26."
If the recovery is based upon the first count of the declaration, which in turn is based upon a guaranty of the St. Lucie Estates to pay, or answer for, the debts of the Pelican Hotel Company, the "affidavit of claim" does not even purport to be proof of such guaranty, and therefore the case of Goldring v. Thompson, 58 Fla. 248, 51 So. 47, does not apply, as might have been the case if the affidavit of claim had been based upon exhibit "A" to the special count of the declaration as an original undertaking with the original of same being attached. See West v. Grainger, 46 Fla. 257, 35 So. 91. But in that case it would apply only to the St. Lucie Estates while the judgment is joint. Sarasota Ice Co. vs. Lyle, 53 Fla. 1069, 43 So. 602.
In the case of Goldring v. Thompson, the cause of action was based upon the letter requesting the credit to Hall and further stated, "your money is good."
In the case of Brunt vs. Gallagher, 22 Fla. 92, this Court said:
"In the entering a final judgment consequent upon a default, on an open account, the judgment should show what evidence was produced by the plaintiff to enable the clerk to ascertain and assess the damages and to show what was the basis of the judgment." Ropes v. Snyder-Harris-Bassett Co., 37 Fla. 529, 20 So. 535.
In the case of Smith v. Wilson, 71 Fla. 624, 71 So. 919, it was said:
"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."
The judgment entered by the clerk merely states that "it appearing by affidavit of plaintiff, duly executed, that there is now owing and due from the above defendants to plaintiff herein the sum" etc.
The mere affidavit of the "Credit Manager" of the plaintiff alone, taken before someone other than the clerk, and without any other proofs being attached or filed in evidence, is not sufficient basis upon which a clerk may enter final judgment upon an open account or a written instrument. Section 4288, Compiled General Laws of Florida, 1927, providing the conditions under which the clerk may enter a final judgment upon default requires strict conformity to its terms on the part of a clerk who in entering the final judgment acts merely in a ministerial capacity, and must follow statutes strictly in entering judgments. Saucer v. Vincent, 82 Fla. 296, 89 So. 802.
If the judgment entered by a clerk is based upon a written instrument, such as exhibit "A" to the declaration, the record must show that the original was produced in proof. Florida Development Co. vs. Polk County National Bank, 76 Fla. 629, 80 So. 560; West v. Fleming, 36 Fla. 298, 18 So. 587.
While the motion to set aside judgment and open default alleges that a good and valid defense stated in its pleas were exhibited to the trial court, the transcript before us contains no proposed pleas, which is deemed essential for a review on that point. Morgan v. Marshall, 78 Fla. 59, 82 So. 690. The proposed pleas not being evidenced in the transcript, this Court is unable to determine whether or not there was shown a meritorious defense, and in such cases, the presumption is in favor of the trial court's ruling as to the merits of the pleas.
We assume therefore that the pleas did not show a meritorious defense. This leaves the question as to whether there was reversible error in the several irregularities pointed out in the opinion and those again referred to herein. In this connection, it may be again noted that the damages are laid in the alias praecipe and summons at $500.00, while the judgment is for $777.95.
The judgment of reversal heretofore rendered is on this rehearing adhered to and the judgment therefore stands reversed.
The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and adjudged by the Court that the judgment of reversal heretofore rendered in this cause is on this rehearing adhered to and the said judgment of the Court below therefore stands reversed.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL, BROWN AND DAVIS, J.J., concur.