St. Lucie Estates Inc. v. Palm Beach Plumbing Supply Co.

A final judgment was, pursuant to a default, entered by the clerk of the circuit court in favor of defendant in error, as plaintiff below, against St. Lucie Estates, Inc. and Pelican Hotel Co., as defendants below. The St. Lucie Estates Inc., in its own behalf filed a motion to set aside the judgment, also motion to stay execution, both of which were denied and the case is here for review upon writ of error taken alone by the St. Lucie Estates Inc., for convenience herein referred to as defendant. Ordinarily, in a case coming through a similar procedure, we would be inclined to affirm, as in the final judgment substantial justice may have been done; however, the transcript presents so many discrepancies, irregularities and omissions that in the ultimate or sum total, to affirm would be a dangerous precedent for future consideration, if not a denial of substantial rights. Only the more serious irregularities will be briefly referred to herein. The assignment of error principally relied upon, is that the trial court erred in its order of April 14, 1928, denying the motion to open default and set aside the judgment. Plaintiff's declaration in four counts, filed on June 6, 1926, purports to name and sue both the St. Lucie Estates Inc. and the Pelican Hotel Company, though the latter company is not referred to or mentioned in the declaration. The allegations of the first or special count are based upon a guaranty, made by W. I. Shuman, Treasurer of St. Lucie Estates, Inc., of the payment for material furnished and delivered to F. R. Nott, a contractor, in the amount of $840.45, to be used upon the Pelican Hotel, *Page 208 in which the former company is said to have a part interest. There is no allegation or indication that the Hotel Company ever had anything to do with the purchase of the material. It is further alleged that on November 12, 1926, a payment of $150.00 was made by St. Lucie Estates Inc., leaving $690.45 with interest thereon due. The motion filed April 10, 1928 to vacate and set aside the judgment, verified by oath, alleges that a default and final judgment was entered against defendants on September 6, 1927, but that upon motion of defendant the same was set aside September 20, 1927, and that attorney for plaintiff informed defendant, St. Lucie Estates, Inc., that no further claims would be made against said company. This allegation was not denied or refuted by plaintiff. The record, however, shows that on November 23, 1927, an alias summons was issued upon a praecipe of plaintiff made returnable to December rule day, which gives the damages as $500.00 instead of $1000.00 as evidenced by the declaration, and it does not appear that a new or amended declaration was filed. Section 4229, Compiled General Laws of Florida, 1927, provides that a suit at law is begun by filing a praecipe stating names of parties, nature of the action and the "amount of the debt or damages" for which the plaintiff sues. Branch v. Branch, 6 Fla. 314; McKay v. Friebele, 8 Fla. 21; McMillon v. Harrison, 66 Fla. 200, 63 So. 427. The said motion to vacate alleges that while no service had been made upon the defendant, that an attorney of Stuart, not employed by defendant and without the knowledge or request of defendant, filed appearance on the December rule day, as an alleged friendly precaution; that defendant knew nothing of the reinstitution of the suit *Page 209 and that there was some mistake; that the attorney promised to withdraw the appearance, but in the meantime a default and final judgment was entered, whereupon said attorney filed a motion unsupported by oath to have same set aside, which the court denied. The record shows that upon said default being entered, the plaintiff filed an "affidavit of claim" with the clerk as the basis for entry of final judgment, wherein it is stated that "the account is hereto attached and marked 'A'." No verified account appears to have been attached, nor was there proof attached or statement presented in the affidavit as to the St. Lucie Estates Inc. guaranteeing the bill for F. R. Nott, as alleged in the declaration. Copies of both appear as exhibits to the original declaration. Thereupon final judgment was entered by the clerk on February 21, 1928, against both the Pelican Hotel Co., and St. Lucie Estates Inc., it "appearing by affidavit of plaintiff, duly executed (no statement that it was "filed") that there is now owing and due from the above defendants to plaintiff herein the sum of $690.45, as principal, $80.00 interest, and $7.50 as costs herein." No reference is made in the "affidavit of claim" or the judgment as to defendant's guaranty of the payment for the material furnished Mr. Nott. The letter attached to the declaration which undertook to guarantee the account reads as follows: "ST. LUCIE ESTATES, INC. Restricted Residential Subdivision On the St. Lucie River. Stuart, Fla. June 15, 1926 "Palm Beach Plumbing Supply Co., West Palm Beach, Florida. *Page 210 "Gentlemen: "St. Lucie Estates, Inc., own 75% of the stock in the Pelican Hotel Company and are completing the addition to the building on which Mr. Frank R. Nott has the plumbing contract. Funds with which we will make settlement for this additional work will not be available for about 60 days. We would therefore appreciate your extending credit for the amount of the attached bill, $840.55, to Mr. Nott and will guarantee payment of same promptly at the end of the 60 period. "Statement of St. Lucie Estates, Inc. is attached and copies of letters from our local bankers as to our credit standing with which I think you are already to some extent familiar. Very truly yours, St. Lucie Estates, Inc. W. I. Shuman, Treasurer." WIS:N ENC. The judgment was based upon an open account, while as a matter of fact the suit against St. Lucie Estates was based upon the guaranty of the account of F. R. Nott, the contractor. Section 4288 Compiled General Laws of Florida, 1927, provides that in a suit upon a "written instrument," upon default, the clerk shall assess the amount which the plaintiff is entitled to recover, on "the production and filing of such instrument." The suit against the defendant, St. Lucie Estates, is based on a "written instrument." The proofs, being based upon an open account, might have been valid under one of the common counts of the declaration as against F. R. Nott, had he been sued, or perhaps against the Pelican Hotel Company for whom the material was furnished, but neither the account, nor the letter attached to the declaration *Page 211 shows that the St. Lucie Estates Inc. is liable, other than as guarantor of the account. A judgment by default entitles the plaintiff to the relief for which a proper predicate has been laid in the declaration. North Am. Accident Ins. Co. v. Moreland, 60 Fla. 153, 53 So. 635. It is necessary to declare specially on a promise to pay or answer for the debt of a third person. West v. Grainger,46 Fla. 257, 35 So. 91. The declaration declared upon the written promise to pay the debt of F. R. Nott, while the proof of claim and final judgment is based upon an open account for goods bought and delivered to Mr. Nott for the use of the Pelican Hotel Co. The above statute requires strict conformity to its terms on the part of the clerk entering the final judgment, who acts merely in a ministerial capacity. Smith v. Wilson, 71 Fla. 624, 71 So. 919; Daniell v. Campbell, 88 Fla. 63, 101 So. 35. A plaintiff is bound to see to the regularity of his judgment and that his declaration and pleadings are correct at law, so as to entitle him to such judgment upon an inspection of the record. Wood Co. v. Bank of State of Ga. 1 Fla. 378. The limitation in which a default or judgment may be opened does not apply to defaults or judgments entered by a clerk without legal authority. Mickler v. Reddick, 38 Fla. 341, 21 So. 286; Ex parte Jones, 92 Fla. 1015, 110 So. 532. One of the questions raised by the motion to set aside the final judgment, which motion was verified by oath and not denied, sets up that defendant was never served with process and did not know of the reinstitution of the suit; that plaintiff's attorney advised defendant that no further claims would be made; that attorney, John J. Moore, *Page 212 filed the appearance without defendant's knowledge, understanding, employment or otherwise; that the defendant understood the unauthorized appearance would be withdrawn; that in the meantime a judgment was entered thereon, whereupon said attorney advised defendant he would have the judgment set aside and did file a motion for that purpose without supporting oath or affidavits, which motion was denied. The circumstances of the whole proceedings appear to concur with the record and the sworn motion asking for the setting aside of the judgment, filed by the regularly retained attorneys of defendant, on April 10, 1928, and the conclusion is reached that the action of the attorney who filed the appearance, was without authority or knowledge of defendant. The defendant not having been served, the appearance was at best only a voluntary appearance, and it could not be voluntary without the knowledge or authority of the defendant. In the case of Budd v. Gamble, 13 Fla. 265, it was said: "No legal service of the summons was made upon defendant; but an unauthorized attorney entered an appearance for defendant at the return of the summons, and defendant alleges that he had no knowledge of the existence of the judgment until twenty years after it was entered." Under the unusual circumstances in that case, it was held that where the statute of limitations has run against a note, equity will not relieve against a judgment thereon which was entered on the unauthorized appearance of an attorney, but that fraud or a meritorious defense must be shown. In the present case, the motion sets up that a meritorious plea was presented and an offer to go to *Page 213 trial on the plea immediately. The record does not show this, but it is set up by oath and not denied. "Where an attorney without authority enters an appearance for a defendant, the appearance should be set aside on motion before judgment. If a judgment has been rendered against the defendant on such an unauthorized appearance, the court should, upon motion, vacate the judgment." 2 R.C.L. 326; 33 C. J. 1096. It was held in the case of Tidwell v. Witherspoon, 18 Fla. 282, that where a clerk has entered defendant's appearance by an attorney who was unauthorized, the Clerk's entry could not bind the attorney or the party. We note the fact that a motion was filed by the said attorney to set aside the judgment which would appear to counter the allegation of defendant that the appearance was filed without authority and repudiated after knowledge of it, but the motion was not sworn to by anyone and the facts stated therein were without verity and thus it was properly overruled by the court. It appears more likely that the attorney was undertaking to comply with his promise to have the judgment set aside which he had wrongfully, though with apparently good intentions, caused to be entered. The judgment should be reversed.