CHARLES E. THOMAS ET AL., PLAINTIFFS IN ERROR,
v.
LOUIS J. NATHAN, ET AL., DEFENDANTS IN ERROR
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In this writ of error case, the Florida Supreme Court addressed whether default judgments against defendants Thomas and Perry could be upheld despite alleged variances between pleadings and proof, and whether technical omissions from the trial record affect the validity of default judgments.
The court affirmed the default judgment, holding that the omission of the default entry from the appellate transcript is a merely technical and harmless error that does not invalidate the judgment, and that defaulting defendants cannot complain about variances between pleadings and proof unless there is something in the proceedings upon which a motion for new trial could have been based.
“the failure to note of record a default in fact, is 'a merely technical and hariless error.'”
Establishes that omission of default entry from trial record is not fatal to judgment
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Join FLexlaw to unlock all legal intelligenceCharles E. Thomas and E. A. Perry were defendants who did not appear in the trial court. A judgment by default was entered against them, though the de…
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Per Curiam.
A petition for rehearing suggests that the court did not consider the first three assignments of error ; that the court failed to note that neither Thomas nor Perry appeared in the trial court and that variances as to them could not have been set up in a motion for new trial; “that the judgment as against Perry and Thomas was by default” and variances as to them should be considered without motion for new trial or motion in arrest of judgment; and that “there can be no motion for new trial by defendants against whom judgment is rendered by default.”
The first assignment of error is that “there was no judgment by default ever made and entered against the defendants, Charles E. Thomas and E. A. Perry, upon which to base the final judgment.” It does not affirmatively appear by the record that no judgment by default was entered, and the failure to note of record a default in fact, is “a merely technical and hariless error.” 6 Ency. Pl. & Pr. 56. In the directions given by counsel under the rules for making the transcript of the record brought here on writ of error, the judgment by default is not among the enumerated papers to be included in the transcript, and counsel directed the clerk to “omit all other papers, pleadings, orders and judgments.” There is nothing here to show that a default entry was not in fact made and omitted from the transcript under the directions given to the clerk. The assignments of error and the petition for rehearing clearly show “that the judgment against Perry and Thomas was by default.”
The second and third'assignments of error relate to asserted variance between the allegations and proofs. If there is anything in the proceedings on which to base a motion for new trial the defaulting defendants could have had a motion for new trial, even though they were in default. If there is nothing on which to base a motion for new trial the defaulting defendants cannot justly complain. In Baker & Holmes Co. v. Indian River State Bank, 61 Fla. 106, 55 South. Rep. 836, it Avas held that the “judgment must IoIIoav the verdict and conform to the pleadings.”
Rehearing denied.
All concur, except Cockrell, J., who takes no part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Huffstetler v. Our Home Life Ins. Co., 67 Fla. 324 (Fla. 1914)…rial of the cause, but the final judgment recites that a default is entered against the defendant because of his failure to plead over. That the plaintiff was legally entitled to snch default there can be no question. As we held in Thomas v. Nathan, 65 Fla. 391, 62 South. Rep. 206, “Where there is in fact a default, the omission to make an entry thereof may be a merely technical and harmless error.” The assignments based upon the action of the court in empaneling a jury and submitting the cause for the ass…
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Wright v. Nesmith, 86 Fla. 544 (Fla. 1923)…ial of the cause, but the final judgment recites that a default is entered against the defendant because of lxis failure to plead over. That the plaintiff was legally entitled to such default there can be no question. As we held in Thomas v. Nathan, 65 Fla. 391, 62 South. Rep. 206, ‘Where there is in fact a default, the omission to make an entry thereof may be a merely technical and harmless error. ’ The assignments based upon the action of the court in empaneling a jury and submitting the cause for the as…
Authorities Cited
- Baker & Holmes Co. v. Indian River State Bank, 61 Fla. 106 (Fla. 1911)