JOSEPH Y. PORTER, AS THE SURVIVING PARTNER OF THE LATE FIRM OF FREDERICK P. SECLOR AND JOSEPH Y. PORTER, MERCHANTS AND TRADERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF F. P. SECLOR & CO., PLAINTIFF IN ERROR,
v.
JOSEPHINE PARSLOW AND ALFRED H. PARSLOW, HER HUSBAND, DEFENDANTS IN ERROR
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Joseph Y. Porter, surviving partner of F. P. Seclor & Co., challenges a default judgment entered against the firm by the Parslow defendants. The Florida Supreme Court reverses, holding that a default cannot be entered for want of a plea when the defendant has already filed pleas to which a demurrer has been sustained without leave to plead over.
The court held that a default cannot be entered for want of a plea where a defendant has filed pleas and a demurrer to those pleas has been sustained with no leave to plead over. Therefore, the default judgment entered in this case was erroneous and must be reversed.
“This court has held more than once that a default can not be entered for want of a plea, where the defendant has filed pleas to which a demurrer has been sustained with no leave to plead over.”
Establishes the controlling legal rule that governs when defaults for want of a plea are improper
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Join FLexlaw to unlock all legal intelligenceJosephine and Alfred Parslow brought an action of assumpsit against the firm F. P. Seclor & Co. in Hillsborough County Circuit Court on July 1, 1889. …
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Carter, J.:
The defendants in error brought an action of assumpsit against the firm of F. P. Seel or & Co., of which plaintiff in error is surviving partner, in the Circuit court of Hillsborough county, on July 1st, 1889. No summons was issued, to the defendants, but on September 2d, 1889, Joseph Y. Porter, one of the defendants, filed pleas to the declaration in his own behalf only. Plaintiffs filed a demurrer to these pleas, which was heard October 3d, 1889, and an order made thereon in the following words: ‘ ‘Demurrer sustained; defendant excepts.” On April 7th, 1890, plaintiffs filed a príncipe with the clerk instructing him to enter a default against defendants for want of a plea or demurrer; and on July 6th, 1891, the clerk entered judgment by default in accordance with the pnecipe. On August 31st, 1891, the clerk, upon affidavit of one of the plaintiffs purporting to prove the cause of action sued upon, entered final judgment against the defendants, and the writ of error was sued out from this judgment by the plaintiff in error as surviving partner, his co-delendant having died.
The only assignments of error argued by plaintiff in error are, that the clerk had no power to enter the default, or final judgment, under the state of the pleadings at the time of such entry. This court has held more than once that a default can not be entered for want of a plea, where the defendant has filed pleas to which a demurrer has been sustained with no leave to plead over. The default entered in this case was, therefore, erroneous. Garlington vs. Priest, 13 Fla. 559; L’Engle vs. L’Engle and Hartridge, Admrs., 19 Fla. 714; Pettys vs. Marsh, 24 Fla. 44, 3 South. Rep. 577.
The fourth assignment of error complains of the action of the court in sustaining plaintiff’s demurrer to defendant’s pleas. We must treat this assignment as-abandoned for failure to argue same. No more is al legecl in the brief for plaintiff in error than a bare statement that the ruling of the lower court is erroneous; no reasons being given, no principles of law stated, and no authorities cited. The error complained of is not so glaring or patent that no argument is needed to demonstrate it. Thomas vs. State, 36 Fla. 109, 18 South. Rep. 331.
The judgment is reversed.
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Citator
Cited By
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Hoodless v. Jernigan, 46 Fla. 213 (Fla. 1903)…. 564, 16 South. Rep. 582; Thomas v. State, 36 Fla. 109, 18 South. Rep. 331; Wall v. Shelley, 36 Fla. 357, 18 South. Rep. 856; Charles v. State, 36 Fla. 691, 18 South. Rep. 369; Camp Bros. v. Hall, 39 Fla. 535, 22 South. Rep. 792; Porter v. Parslow, 39 Fla. 50, 21 South. Rep. 574; Maloy v. State, 39 Fla. 432, 22 South. Rep. 719; Holland v. State, 39 Fla. 178, 22 South. Rep. 298; Mercer v. State, 40 Fla. 216, 24 South. Rep. 154; Waldron v. State, 41 Fla. 265, 26 South. Rep. 701; Mitchell v. State, 43 Fla.…
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Mathis v. State, 45 Fla. 46 (Fla. 1903)…of counsel for defendants and no argument is made concerning them; therefore we treat them as abandoned. Mitchell v. State and Williams v. State, each decided at the present term; Thomas v. State, 36 Fla. 109, 18 South. Rep. 331; Porter v. Parslow, 39 Fla. 50, 21 South. Rep. 574. The twenty-ñrst error assigned is as follows: • “The court below erred in refusing 'to admit in evidence the testimony of the witness Geo. H. Wynn, in answer to the question, “I will ask you to state the exact words you used a…
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Williams v. State, 45 Fla. 128 (Fla. 1903)…. The brief of plaintiff in error, in the above and many other assignments, is obnoxious to the criticism of this court made upon a somewhat similar one in the case of Thomas v. State, 36 Fla. 109, 18 South. Rep. 331, approved in Porter v. Parslow, 39 Fla. 50, 21 South. Rep. 574. The thirty-fourth assignment of error. This assignment is based on the refusal of the court to give in charge to the jury the whole of section 2922, Rev. Stats. The court had already, charged the jury “if you acquit the accused…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thomas v. State, 36 Fla. 109 (Fla. 1895)
- Wm. H. Garlington v. Priest, 13 Fla. 559 (Fla. 1869)
- L'Engle v. L'Engle, 19 Fla. 714 (Fla. 1883)
- Pettys v. Alphonso Marsh, 24 Fla. 44 (Fla. 1888)