G. A. BRAUER, APPELLANT,
v.
B. B. PADDOCK, APPELLEE
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Brauer appealed the cancellation of a sheriff's deed issued under execution in an attachment suit. The Florida Supreme Court affirmed the lower court's decree, holding that the clerk lacked authority to enter a default judgment while the defendant's motion to dismiss the attachment was pending, rendering the default, judgment, and resulting sheriff's deed void.
The clerk was without authority to enter a default or judgment on default while the motion to dismiss was pending, making both the default and judgment void. Consequently, the sheriff's deed issued upon execution based on that void judgment was also void, and the lower court properly entered a decree canceling it.
“the Clerk was without authority to enter a default or a judgment on default against the defendant while the motion to dismiss was pending and undisposed of, and, therefore, the default and the judgment entered thereon were both void”
States the central holding regarding the clerk's lack of authority to enter default while a motion to dismiss is pending
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Join FLexlaw to unlock all legal intelligenceAn attachment suit was filed against W. E. Newlin on February 18, 1928, in Pinellas County Circuit Court with a writ of attachment levied on certain l…
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This was a suit to set aside and cancel a sheriff’s deed issued under execution in a suit instituted by attachment. The deed purported to convey the property which was levied on under the writ of‘'attachment. There was answer, demurrer and cross bill filed to the bill of complaint. Answer was filed to the cross bill. Testimony was taken and a decree entered canceling the Sheriff’s deed.
The record shows that suit by attachment was filed in the Circuit Court of Pinellas County on the 18th day of February, 1928, that writ of attachment issued and was levied upon the lands involved in the present suit. Declaration was filed on March 28, 1928. The writ of attachment directed the sheriff to summons the defendant W. E. Newlin to appear before the Court on the 5th day of *1176March. The return shows that' the sheriff was unable to locate said defendant in Pinellas County. On April 2, 1928, Newlin filed motion to dismiss the attachment containing four grounds. The motion to dismiss constituted a general appearance of the defendant in attachment. Thereupon the court acquired jurisdiction of the res and of the person of the defendant'. While the motion to dismiss was pending undisposed of a praecipe for default was filed, together with affidavit and proof of claim. Default was entered on the 8th day of May, 1928, by the Clerk acting through his deputy and on the 16th day of May final judgment was entered by the Clerk in like manner.
Under authority of the opinion and judgment in the case of Albert M. Travis Co. vs. A. C. L. Rwy. Co., filed at this term of the Court, the Clerk was without authority to enter a default or a judgment on default against the defendant while the motion to dismiss was pending and undisposed of, and, therefore, the default and the judgment entered thereon were both void. It follows, of necessity, that' the sheriff’s deed issued upon sale under execution which execution was based on the judgment entered by the Clerk was void; and there was no error in entering the final decree here complained of.
The record shows that the attachment' proceedings are valid up to the period of the entry of the default by the Clerk and that suit now stands on the docket as if such void proceedings had not been had.
The final decree in this case does not attempt to adjudicate that the title claimed by Paddock, complainant in the court below, appellee here, is superior to the lien of attachment. This is a question which may- be determined upon proper proceedings in the attachment suit. The decree should be affirmed and it is so ordered.
Affirmed.
*1177Ellis and Brown, J.J., concur.
Whitfield, P.J., and Terrell and Davis, J.J., concur in the opinion and judgment.
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Ferlita v. State, 380 So. 2d 1118 (Fla. 2d DCA 1980)…llel situations come to mind. The most analogous example is the power of a clerk to enter a default judgment. If the record does not reflect the statutory prerequisites to the clerk’s power to act, the judgment so entered is void. Brauer v. Paddock, 103 Fla. 1175, 139 So. 146 (1932); St. Lucie Estates v. Palm Beach Plumbing Supply Co., 101 Fla. 205, 133 So. 841 (1931); Kroier v. Kroier, 95 Fla. 865, 116 So. 753 (1928). The judgments are vacated and the cases are remanded to the circuit court for further pro…
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Palatka Auto Auction, Inc. v. First Nat'l Bank OF Merritt Island, 191 So. 2d 450 (Fla. 4th DCA 1966)…filing a motion to dismiss, the court cannot without hearing the motion and without notice to the defendant enter a default judgment on the merits against the defendant. Defendant bottoms its entire case upon the holding in Brauer v. Paddock, 1931, 103 Fla. 1175, 139 So. 146. Even though the Brauer case concerned a dismissal by the circuit court, the defendant insists that the precedent applies to the case sub judice, i. e., the same law applies equally to both circuit courts and small claims courts. In a…