NETSO & BOHLEN, APPELLANTS,
v.
FOSS & SCHNEIDER, APPELLEES
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Netso & Bohlen were jointly sued on three promissory notes. Netso defaulted while Bohlen pleaded and went to trial. The jury rendered a verdict against both defendants and assessed damages. The appellants challenged whether a judgment could be entered against Bohlen after default was entered against Netso, arguing the causes of action merged.
A judgment of default as to one joint promissor does not affect the right to pursue another joint promissor who has pleaded. Damages may be assessed by a jury rather than the clerk, as the statute authorizing clerk assessment applies only where there is an actual default, and here an issue was joined with Bohlen.
“A judgment of default as to one does not affect the right to pursue the other who has pleaded.”
Establishes that default judgment against one joint promissor does not bar judgment against another who has pleaded.
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Join FLexlaw to unlock all legal intelligenceFoss & Schneider sued Netso & Bohlen on three joint promissory notes. A default was entered as to Netso. Bohlen pleaded to the action. At trial, the j…
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The Chief-Justice
delivered the opinion of the court.
Foss & Schneider sued Netso & Bohlen upon three joint promissory notes. There was a default entered as to Netso, And a plea by Bohlen
At the trial the jury were sworn to try the issue as to Bohlen, and to assess the damages as against STetso. There-was a verdict for plaintiffs and the damages were assessed against both defendants. Motion for a new trial was made-and denied and final judgment entered, from which an appeal is -taken.
Appellants contend that a judgment by default having-been entered as to one of the joint promissors, there should have been no judgment against the other, but he should have been discharged, on the principle that a judgment, against one merges the entire cause of action and there can he but one judgment upon the same cause of action, both defendants being summoned, in the same court. The rule-has no application in this case, because there is but one final judgment. A judgment of default as to one does not affect the right to pursue the other who has pleaded.
Another point urged by appellants is that there having-been a default as to one, the clerk should have assessed the-damages and it was irregular to refer the assessment of damages to a jury.
The act of 1878, ch. 1938, sec. 7, authorizes the clerk to-assess the damages on default entered where the action is on written promises. But there is no default here as to-one of the defendants, but an issue joined.' This statute-therefore does -not include this case. Moreover, the defendant in default has no standing to complain of amere irregularity (if there had been such) if the damages were' assessed at the proper amount.
There is no error and the judgment is affirmed.
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Days Inns Acquisition Corp. v. Hutchinson, 707 So. 2d 747 (Fla. 4th DCA 1997)…inal judgment in the action cannot be entered until the trial when some, but not all, parties default in the absence of statutory authority." Trawick, Florida Practice and Procedure § 25-4 (1996 ed.) For this proposition Trawick cites Netso v. Foss, 21 Fla. 143 (Fla.1884). We do not interpret Netso as standing for this broad statement. Cf. 33 Fla. Jur.2d Judgments and Decrees § 278 (1994). . In enunciating this view, the third district cited to Fred Chenoweth Equip. Co. v. Oculus Corp., 254 Ga. 321, 328 S…
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State Farm Mut. Auto. Ins. Co. v. Letha Clark and Martha Mosby, 544 So. 2d 1141 (Fla. 4th DCA 1989)…the case of the answering defendants, and as a part thereof. In such a case it is proper to submit to the jury the issues of fact as to the defendant who is not in default, and the assessment of damages against one who is in default. Netso v. Foss, 21 Fla. 143 (1884); Dade County v. Lambert, 334 So. 2d 844 (Fla. 3d DCA 1976). In view of the foregoing, it appears that it was improper for the trial court to strike State Farm’s liability defenses and force it to trial on damages only. Instead, the court sho…