Henry Brash, Plaintiff in Error, v. Walter J. Ehrman and Gustav Stern, Copartners doing Business as Ehrman & Stern, Defendants in Error, 56 Fla. 153

Parkhill, J., (after stating the facts.) : The first assignment of error is, that the court erred in striking the plea of the defendant. There was no error in this ruling. The claims sought to be set off are for tort. Our statute prescribes that debts or demands mutually existing between the parties shall be proper subjects of set off. The case of Matthews v. Lindsay, 20 Fla., 962, disposes of this question. In that case we held: “A set off is allowed in an action on contract, only of matters growing out of contract.

Damages sustained by reason of annoying suits, malicious prosecutions, slander of title, injury to one’s credit occasioned by such proceedings, though relating to the subject matter of plaintiff’s suit, cannot be set off.” This plea was properly stricken on motion. It was plainly frivolous, and was properly treated as a nullity to be stricken on motion. A demurrer was not necessary to dispose of this plea, neither was a motion to make definite and certain applicable, because this was not the case where a meritorious defense was pleaded with such uncertainty that its precise and full nature was not shown.

The second assignment of error is that the court erred in entering a final judgment against the defendant. The only argument in support of this assignment is the statement that it “is practically embraced within the, first assignment of error, except for the fact that the court in his judgment finds that the defendant had no defense to the cause of action.

How the court was able to find this, without any testimony or hearing of any kind, is something beyond our comprehension.” Upon striking out the plea of set off, the court entered a default judgment against the defendant. 'Thereupon a final judgment was entered. The record shows that notice of the time and place of the hearing of the motion to strike the plea and enter the judgment was, served upon counsel for the defendant, and the judgment recites that it was entered after argument of counsel on the motion to enter judgment by default.

It does not appear from the recitals of the judgment that he asked leave to file a new plea. The court was authorized to enter judgment by default ag'ainst the defendant since his plea was stricken out as frivolous and irrelevant and the defendant did not ask leave to file a. new plea. 23 Cyc. 749. After the frivolous plea was stricken out, the defendant was in default; his time for pleading had gone by; his frivolous plea was no plea. The recitals of the plea seem to sustain the findings of the judgment that the defendant had no defense to the cause of action.

There is no bill of exceptions here, and we know nothing except what appears in the record proper. The judgment is affirmed. Taylor and Hocker, JJ., concur. Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.