John A. Loring, Plaintiff in Error, vs. W. L. Wittich, Defendant in Error, 16 Fla. 617

The Chief-Justice delivered the opinion of the court. The plaintiff in error, who was the defendant below, seeks-to reverse the judgment upon three several grounds: 1. That the court erred in denying the motion to set aside-the default and the judgment entered thereon.

The suit was commenced by praecipe and summons, and an attachment was issued on the same day against Loring and several others who were described as partners. -The defendant Loring was served with the summons, and the other defendants being non-residents were not served, but all the defendants appeared specially, and moved to quash the attachment, which motion was granted; but meantime, for want of appearance and plea to the declaration,' the defendant’s default was duly entered and final judgment was rendered against all the defendants.

Subsequently, however, at the same term, the judgment was vacated as to all the defendents not served with summons. The default of Loring was regularly entered, as he had been served with summons and had failed to appear generally .and plead. Iiis excuso for this failure was that as he had made a motion to dismiss the attachment, he was advised, and supposed, that no default could be entered against him while that motion was pending. Of course he was mistaken in this. The dismissal of the attachment did not ■abate the suit, as it was commenced by summons duly served on Loring.

Had he tendered a good plea to the merits, or filed'an affidavit of merits and offered to goto trial at once upon a material issue, the' court might well have-set aside the default and permitted him to plead; but this was a matter to be addressed to the sound discretion of the court. (1 Tidd’s Pr., 508 ; Graham’s Pr., N. Y., 788 ; 3 Johns., 141, 245, 258, 449 ; 6 ib., 131 ; 1 Cai., 111, 118 ; 2 Cai., 30 ; 3 Cai., 95 ; 2 Str., 1,242; 2 Salk., 518 ; 2 W.

Bl., 35.) Had there been any substantial irregularity in the entry of the default, it might be asked as a matter of right that the default be set aside and the party be permitted to plead, but as the default was regular it could only be asked as an exercise of the discretion of the court. It has been quite nniformily held that as to orders resting in the discretion of the court, the parties cannot require their reversal by an appellate court. 2. The second ground of error is that the court “ denied-the motion to dismiss the cause for default in filing bill of. particulars under Rule 14 and the 3d

section of Chap. 1096,. Laws of 1861.” It is not clear that there is any foundation for this allegation of error. With the declaration appears to have been.filed a detailed account by items and prices of goods bought of plaintiff by defendant, which account is referred to in the declaration as the claim sued on. This is all that the-statute or the rules require. / 3.

The third ground of error is the granting of a motion-to amend the proceedings by striking out, wherever they occur in the process, pleadings and judgment, the words describing the defendants as partners, and noting the non-service upon the other defendants. There is no substance in this objection. It can make no-difference to the defendant Loring whether he is described as a partner or otherwise liable with the others. The judgment as to him was regular.

ITad he shown to the court below that he had a defence upon the merits to the action, in its amended form, or that he was in any wise prejudiced-by the allowance of the amendment, he might have some-grounds of complaint. It is not apparent that he was injured, or in any way affected by it. He has nothing to complain of in this respect. The argumentative suggestion of counsel, that the defendant Loring may have defences to the action in its amended condition, can have no weight, because he did not,, when he had the opportunity, apply to the court for leave to file a plea.

That he may have a defence is possible, but the probability is that if he had he would have informed the court of the fact, and in that case he would have been in a condition to demand a hearing. The power of the court to allow the plaintiff to amend his proceedings is ample, under the provisions of the practice act of 1861, and the act secures to the defendant in such cases, “ if duly applied for,” every legal or equitable defence. The common law rule that a record was not amendable, must be'taken to mean that it was not amendable after the term, (Rex vs.

Carlisle, 2 B. & A., 971,) for during the ’ term the record is said to be in fieri$ and it is in the breast of the court to mould it as the justice of the case-requires. See note to Robinson vs. Raley, 1 Smith’s Leading Cases, 431, 438. The judgment is affirmed.