Einstein's Sons & Leffler v. Davidson

35 Fla. 342

Opinion

Taylor, J.:

A. Einstein’s Sons on the rule day, the 5th day of April, A. D. 1886, recovered final judgment, upon a default, before the clerk of the Circuit Court of Columbia county for $703.13 against A. Davidson. After the entry of judgment by default the clerk entered the final judgment in the language following: “And after-wards, on the same day, came the said plaintiffs and demanded a final judgment against the said defendant, but because it is unknown what damages the plaintiffs have sustained by reason of the premises, the clerk is required to compute the interest, and inquire and assess the damages the plaintiffs have sustained, as well by reason of the premises, as for their costs and charges by them about this suit in this behalf expended; and the clerk having assessed the damages on one proven account herein filed, seven hundred and three dollars and thirteen cents ($703.13), over and above their costs and charges in this behalf expended. Therefore it is considered that the said plaintiffs, Jacob A. Einstein and Frank A. Einstein, do have and recover of and from the said defendant, Alexander Davidson, their damages aforesaid by the-said clerk so assessed, and also two dollars and forty-three cents ($2.43), for their costs and charges, and that the plaintiffs have execution therefor; and the defendant in mercy, etc.

John Vinzant, Jr.,

Clerk Circuit Court.”

April 5th, A. D. 1886.

Shortly after the entry of this judgment it was assigned upon the records by the plaintiffs therein to A. Leffler.

On the 10th day of September, A. D. 1890, Agnes Davidson, as administratrix of the estate of the judg ment debtor, Alexander Davidson, who, it seems, died on the ISth day of May, A. D. 1889, more than three years after the entry of said judgment, served notice upon the attorney for A. Leffler, the assignee of said judgment, to the effect that she, as such administratrix, would move before the circuit judge on the 23rd of September, A. D. 1890, for an order making her, as administratrix, a party to such judgment, and for an order setting aside and vacating such judgment upon the ground of irregularities therein as follows: 1st. Because the judgment as entered by the clerk was unauthorized, in this, that it appears by the record that the clerk did not ascertain plaintiffs’ damages by legal evidence produced to and filed by him after the entry of default as required by law. 2nd. Because the clerk entered the said judgment wfithout any evidence before him of any damages sustained by the plaintiffs touching the matters of the suit. 3rd. Because the said judgment has been fully paid and satisfied by the .said A. Davidson in his life-time. Accompanying this motion there is a verified petition by the said Agnes Davidson, as administratrix, addressed to the judge, in which also she prays to be made a party to said judgment, in which petition she alleges that an execution was issued from such judgment on the 27th of April, A. D. 1886, and that the same was then being-enforced by the sheriff by levy and an advertisement of sale of the land of said estáte of Alexander Davidson. At the same time with the making of the above motions by Agnes Davidson, as administratrix, a firm doing business as S. Waxelbaum & Son also moved before the circuit judge, in the capacity of judgment -creditors of Alexander Davidson, to be made parties, .along with Agnes Davidson, as administratrix, to said judgment in favor of A. Einstein’s Sons against Alex ■ander Davidson, and to the motion to vacate same. On the 23rd day of September, A. D. 1890, more than four years after the entry of said j udgment, the circuit judge granted all of said motions, making Agnes Davidson, as administratrix, a party defendant to said judgment, in place and stead of Alexander Davidson, her intestate, and vacating and setting aside the said final judgment. From these orders the plaintiffs in error take writ of error.

The sole question presented for decision is, did the circuit judge, after the lapse of so long a time, have the power to set aside and vacate the- final judgment -entered, upon a bare motion to that end? It appears from the transcript of the proceedings leading up to the final judgment that the defendant therein, Alexander Davidson, was personally served with summons in the cause, and that he entered an appearance therein, but failed to plead or demur on the rule day when he was required by the rules so to do, and that thereupon a judgment by default was regularly entered against him, and thereafter, on the same rule day, followed the entry of the final judgment. The only proof exhibited in the record that the clerk had before him to establish the open account sued upon in the cause, and that was the basis of the judgment, was an affidavit proving the account that was made by a member of the plaintiff firm before a notary public in the State of Georgia, and that was appended to the account itself that was attached to and filed with the declaration in the cause. Whether there was any other proof of the account than this before the clerk at -the time of the entry of the final judgment or not, the record does not disclose. But whether there was or was not, the question arises: was it not too late, at the time this motion was made, for the circuit judge to enquire into it upon motion simply to vacate ? If there was in fact no other proof before the clerk upon which to predicate the final judgment than tlie account attached to and filed with the declaration with its verification made before a notary public in another State, we are not now called upon to announce what might have been our conclusion' as to its sufficiency and legality as proof, had the matter been brought here in time and in the regular way for review by writ of error. Neither are we now-called upon to say what the circuit judge should have decided in reference to the sufficiency or legality of such proof, if a motion to vacate had been made before him in the proper time. As before stated, the-sole question now presented is, did the. Circuit Court, at the time this motion was made, have authority, upon-a motion to vacate a final judgment entered by the-clerk on a rule day in vacation, to enquire into the-regularity of the proceedings leading up to such final judgment, and to set aside and vacate the same, unless the judgment itself was void upon its face? We do-not think the judgment here is void upon its face. In the cases of Snell vs. Irvine, 17 Fla. 234, and Blount vs. Gallaher, 22 Fla. 92, this court held that the final judgment entered by the clerk on an open account, upon a default, should show what evidence was produced by the plaintiff to enable the clerk to ascertain and assess the damage, and to show what was the basis-of the judgment; and in both of these cases, brought-up by writ of error, the judgments were reversed because of their being entered by the clerk without the requisite proof; but we do not interpret these decisions, or either of them, as holding that the judgment itself should show in detail and with minuteness what proof the clerk acted upon in its entry; but that the judgment should show that the clerk did act upon proof produced before him, and; in a general way, what that proof was. The judgment here assailed complies, we think, with the requirements of these decisions, at least to such an extent as that it can not be said to be void on its face, when it recites the fact that “the clerk having assessed the damages on one proven, account herein filed, seven hundred and three dollars,” etc. Now whether the account that the clerk deemed, and recited in the judgment to be, ‘ ‘a proven. account,” was in fact a regularly and validly proven account, sufficient to base a final judgment on, is not the question., The recitals of the judgment! itself shows that it was based upon a proven account, could the Circuit Court, at the time this motion was made go further than the face of the judgment itself \ upon a motion to vacate, and enquire into the regularity and legality of the proof upon which the clerk acted as recited in the judgment? We clearly think not. Section 6 of the Pleading and Practice Act (Chapter 1938, approved February 24th, 1873,) after providing for the entry of default and final judgments by the clerk for want of appearance or pleadings on the part of the defendant, provides further as follows: “The court, or the judge thereof, may, for good cause to him shown, open any default or judgment for want of appearance, answer, or plea, and allow the defendant or defendants to demur, plead, or answer within a period of time to be fixed by the said court or judge; but the application therefor must be made within sixty days from the time of the entry of such default or judgment, unless a term of the court shall in the meantime be held, when such application must be made during such term.” It is the policy of the law that all litigation shall eome to. an end; that when it reaches a certain point, the subject-matter involved shall be considered as finally and forever settled between the litigants by the authoritative adjudication of the courts, beyond which the courts themselves have mo authority to go in the way of re-opening or prolonging the proceedings. This point is generally reached when-a final judgment is entered by a court having competent jurisdiction over the subject-matter and the parties, in and by which the matter in dispute between them is solemnly and finally adjudged. It is well settled, as a general rule, that such judgments are under the plenary control of the courts that pronounce them during the entire term at which they are rendered or entered of record; and they may, during such term, be .set aside, vacated, modified, or annulled by that court for cause shown. It is equally well settled, as a general rule, that after the expiration of the term the court loses control of its judgments rendered during that term; they then become final, and unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them, and if errors exist, they can only be corrected by writ of error or appeal in a court that can by law review the decision. 1 Black on Judgments, secs. 305, 306 and citations.. Our statute above quoted limits the authority and power of the Circuit Courts to within sixty days after the entry of a default or final judgment by the clerk on rule days, or during the term of court, in the event a term shall convene at any time before the expiration of sixty days from the entry of such default or judgment, within which they can vacate or set aside any such judgment, when the same is not an absolute nullity, and is not absolutely void. After the lapse of sixty days from the entry of any default or final judgment by the clerk that is erroneous simply, or irregular, or voidable, without being absolutely void, the Circuit Court, or judge, loses control over it, andean not vacate it or set it aside on motion, unless a term of court shall intevene before the lapse of the sixty days, and then, in that event, it must be done during that intervening term, otherwise the court loses control over it and can not vacate it after the term adjourns. Myrick vs. Merritt, 21 Fla. 799; Forcheimer Bros. vs. Tarble, 23 Fla. 99, 1 South. 695; Frankfurth vs. Anderson, 61 Wis. 107, 20 N. W. 662; Egan vs. Sengpiel, 46 Wis. 703, 1 N. W. 467; Knox vs. Clifford, 41 Wis. 458; 1 Freeman on Judgments (4th ed.), secs. 96, 101 and citations; Sedgwick vs. Dawkins, 16 Fla. 198.

The final judgment entered by the clerk here may have been erroneous, and irregular for the want of legal or sufficient proof of the account; and, had the defendant therein moved for its vacation in time, or appealed therefrom in time, it might have been entirely proper to vacate it and annul it because of such erroneousness and irregularity; but, in such case, it would require the judgment of the Circuit Court, on the proceeding for vacation, or the appellate court, on the appeal, annulling and vacating it, in order to make it absolutely void, as was done in the two cases of Snell vs. Irvine, 17 Fla. 234, and Blount vs. Gallaher, 22 Fla. 92. Until the Circuit or the appellate court adjudges that it shall be void because of its errone Ousness or irregularity, the accurate expression in reference to it is that it is voidable only.

The record shows that the defendant in the judgment here was personally served with summons in the cause, and, besides, that he entered an appearance therein. The Circuit Court had undoubted jurisdiction over the subject-matter and of the parties to the suit. The judgment entered by the clerk was such a judg ment as the clerk under the law, had the power under-certain circumstances to enter, because he may have-erred and acted irregularly in entering it without proofs, in strict legal form-, of the account sued on does not make it such an absolute-nullity as that it cam be accurately said of it that it is void. It may have-been erroneous and, therefore, voidable, but not absolutely void. Ponder vs. Moseley, 2 Fla. 207, S. C. 48 Am. Dec. 194; Bond vs. Pacheco, 30 Cal. 530; Genobles vs. West, 23 So. Ca. 154; Harper vs. Biles, 115 Pa. St. 594, 8 Atl. Rep. 446; Ballinger vs. Tarbell, 16 Iowa, 491, S. C. 85 Am. Dec. 527; Mitchell vs. Aten, 37 Kansas 33, 14 Pac. Rep. 497; Hersey vs. Walsh, 38 Minn. 521, 38 N. W. Rep. 613; White vs. Crow, 110 U. S. 183; Town of Lyons vs. Cooledge, 89 Ill. 529. A judgment that is absolutely null and void — a mere brutumfulmen — can be set aside and stricken from the record-on motion at any time, and may be collaterally assailed. 1 Freeman on Judgments, sec. 98 and citations. But the judgment that is voidable only, because irregular or erroneous, must be moved agianst in time-by motion to vacate, or by resort to an appellate tribunal, otherwise it becomes an absolute verity, and passes beyond the control of the courts to disturb.. Such we think was the case here. The judgment was acquiesced in by the original defendant therein for-more than three years after its entry without any assault upon its regularity or validity; it was too late,. after his death, and more than four years after its entry, for his administratrix to-question its validity by-motion because of errors or irregularities in its entry. It had then passed beyond the-control of the court in. which it was rendered to vacate, correct or modify it. because of errors and irregularities in its entry.

The court erred in granting the orders from which The writ of error was taken, and such orders are therefore reversed.

Mabry, C. J., dissents.