J. W. BUSARD AND JENNIE G. BUSARD, PLAINTIFFS IN ERROR,
v.
AGNES G. HOUSTON BY HER NEXT FRIEND, GEORGE M. HOUSTON, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a default judgment entered by a circuit court clerk against defendants in a debt action commenced by attachment. The Court held that a final judgment for default in an attachment action cannot be rendered by a clerk without personal jurisdiction over the defendant, but only by the court in term or a judge in vacation.
The clerk lacked authority to enter the final judgment. Under Section 1426 of the General Statutes of 1906, a final judgment for default in pleading in an attachment action can only be rendered by the court in term or by the judge in vacation, not by the clerk, when personal jurisdiction has not been acquired over the defendant.
“A final judgment for default in pleading in an action commenced by attachment of property cannot be rendered by the Clerk of the Circuit Court in vacation against a defendant of whom the court has not acquired personal jurisdiction. The judgment in such case can be rendered only by the court in term, or by the judge in vacation.”
Establishes the controlling legal rule from Marshall v. Ravisies that a clerk lacks authority to enter default judgments in attachment actions without personal jurisdiction.
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Join FLexlaw to unlock all legal intelligencePlaintiffs commenced an action against defendants J. W. Busard and Jennie G. Busard by attachment of real estate without personal service. After servi…
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Hooker, J.
The defendants in error, to whom reference will be made as plaintiffs, brought an action in the Circuit Court of Dade County againsl plaintiffs in error, who will be referred lo as the defendants. The action was commenced by ataclunent levied on certain real estate. There was no personal service on the defendants.
There was no appearance or plea by the defendants, and on the 29th of August, 1912, the plaintiffs filed a motion in the following words, after giving correct title of the cause: “Comes now the plaintiff, by her attorneys, Shutts, Smith & Bowen, and moves the court to enter a final judgment against the defendants, J. W. Busard and Jennie G. Busard, in the above entitled cause. Original note sued on hereto attached.” (Signed by the attorneys).
The record then shows the following, after stating the title of the cause:
“Row on the 5th day of August, 1912, came the plaintiff, by her attorneys, Shutts, Smith & Bowen, and showed unto the court that service by publication was duly had upon the defendants, and moved the court to enter a default against the defendants for failure to appear, plead, answer or demur to the declaration filed in this cause.
, And now again on the 29th day of August, 1912, comes the plaintiff, by her attorneys, Shutts, Smith & Bowen, and moves the court to enter a final judgment against the defendants, and the plaintiff filed in evidence cause of action sued on, to-wit: copy of promissory note made and executed by the defendants to the plaintiff, and the clerk, having ascertained that there is due the plaintiff the principal sum of twelve hundred seventy and Ro/100 dollars, and interest thereon amounting to four hundred forty-four and 6/100 dollars;
It is, therefore, considered by the court that the plaintiff do have and recover of and from the defendant, J. W. Busard & Jennie G., the sum of $1270.00 principal, and $444.06 interest thereon, together with the costs of this proceeding, which are hereby taxed at $7.26, for which let execution issue.
' Z. T. MERRITT,
Clerk Circuit Court.
By J. B. HAWKINS,
Deputy Clerk.”
A writ of error was sued-out from this judgment.
The record does not show that a default was entered.
There are six assignments of error, but it is only necessary to consider two of them. The first questions the authority of the clerk to enter the judgment.
Section 1426, Gen. Stats, of 1906, provides for a default and final judgment upon constructive service. This section is substantially taken from Section 8, Chapter 1938 of the Act of February 24th, 1873. In the case of Marshall v. Ravisies, 22 Fla. 583, this court construed this section and held: “A final judgment for default in pleading in an action commenced by ¿ttachment of property cannot be rendered by the Clerk of the Circuit Court in vacation against a defendant of whom the court has not acquired personal jurisdiction. The judgment in such case can be rendered only by the court in term, or by the judge in vacation.” The judgment was unauthorized and reversible on writ of error. Other assignments based on the judgment need not be considered as the questions presented may not arise -again. As to the sufficiency of the publication notice, it need not be considered as the prosecution of the writ of error operates as a general appearance. Drew Lumber Co. v. Walter, 45 Fla. 252, 34 South. Rep. 244; Hayman y. Weil, 53 Fla. 127, 44 South. Rep. 176; Barwick y. Rouse, 53 Fla. 643, 43 South. Rep. 753.
The judgment below is reversed.
Shackleford, C. J., and Taylor, Cockrell and Whitfield, J. J., concur.'
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Minick v. Minick, 111 Fla. 469 (Fla. 1933)…in this State that the prosecution of writ of error from what purports to be a final judgment of a circuit court operates as a general appearance in the case by the party taking the writ. Barwick v. Rouse, 53 Fla. 643, 43 So. 753; Busard v. Houston, 65 Fla. 479, 62 So. 483; Henry v. Spitler, 67 Fla. 146, 64 So. 745. However, we are inclined to think that .the service by publication was sufficient. It is true, the sworn bill alleges that defendant’s “present residence as particularly as it is known to defe…
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Henry v. Spitler, 67 Fla. 146 (Fla. 1914)…ound on page 290 of 4 Ann. Cas. Even if we should hold that the court erred in the denial of the motion, as to which we express no opinion, and should for that reason reverse the judgment, the defendant would then be in court. See Busard v. Houston, 65 Fla. 479, 62 South. Rep. 483, following prior decisions in holding that “A writ of error from what purports to be a final judgment of a Circuit Court operates as a general appearance in the case of the parties taking the writ.” Having reached this conclusion…
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Cornwell v. Williford, 73 Fla. 305 (Fla. 1917)…entered against him, whereupon the Clerk in vacation rendered the final judgment, which he was not authorized [*308] to dó. See Section 1426 General Statutes of 1906, Florida Compiled Laws, 1914; Marshall v. Ravisies, 22 Fla. 583; Busard v. Houston, 65 Fla. 479, 62 South. Rep. 483. The service of the notice of the institution of the suit upon Lowman, which was made under the provisions of Section 2122 General Statutes of 1906, did not giye the court jurisdiction of his person, in which case the Clerk was n…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Drew Lumber Co. v. Scotia Walter, 45 Fla. 252 (Fla. 1903)
- Hayman v. Weil, 53 Fla. 127 (Fla. 1907)
- Barwick v. Lenora Rouse, 53 Fla. 643 (Fla. 1907)
- Marshall v. Isabella Ravisies, 22 Fla. 583 (Fla. 1886)