E. R. Wright, Plaintiff in Error, v. John F. Nesmith, Defendant in Error, 86 Fla. 544

Terrell, J. John F. Nesmith sued E. R. Wright to recover the balance due on the following promissory note: “$500.00. Okeechobee, Fla., November 21, 1916. Twelve months after date we promise to pay to the order of John F.

Nesmith, Five Hundred and no/100 Dollars, for value received, payable at Okeechobee, Florida, with interest from date at the rate of 6 per cent, per annum until paid, interest payable semi-annually. “And each of us, whether maker, guarantor, or endorser, hereby severally waives and renounces any and all homestead or exemption rights he may have under the Constitution or Laws of the State of Florida or any other State or United States as against this note, and each further waives demand, notice of non-payment and protest, and in event suit is brought for the collection of this note, agrees to pay all costs of collection, including attorney’s fees, and consents that this note may be extended without notice.

Given as a joint and several obligation. E. R. Wright, (Seal) (Sgd) Ellen Wright, (Seal). No.....Due November 21, 1917. (And endorsed as follows) : 12 8 17, Credited by cash $300.00. Note extended to April 1st, 1918.” A demurrer to the declaration was overruled and defendant required to plead by the 25th day of November, 1922. In compliance with said order, the following plea was entered: “Now comes the defendant E. R.

Wright, and for plea to the declaration of the plaintiff herein filed, pleads to the said Declaration, and says: ‘ ‘ That he never promised as alleged in the. said declaration, and puts himself on the country. “E. R.

WRIGHT, Defendant.” On motion to strike the foregoing plea and default judgment, the court entered the following order: “This cause came on to be heard on motion of plaintiff to strike the plea filed herein and for a default judgment against defendant, and dire notice of such hearing being given and after argument of counsel for both plaintiff and defendant, and the court being advised in the premises, it is therefore ordered and adjudged that plaintiff’s motion be and the same is hereby granted, and that the plea of defendant filed herein is stricken, and a default judgment granted against the defendant, and the Clerk of this court is hereby directed to enter a default judgment against the defendant herein and in favor of the plaintiff, for the failure of the defendant to file a proper and valid plea as directed by the court in its order of November 17th, 1922, and that said default judgment be entered nunc- pro tunc as of December 4th, 1922, the same being rule day in Decern-, ber. “Done and ordered in open Court, at Okeechobee, Florida, on this the 12th day of December, A.

D. 1922. “E. C. DAVIS, Judge.” On December' 12th, 1922, motion to amend the stricken plea was denied and on December 13th, 1922, the clerk entered default judgment in favor of the plaintiff. Motion to set aside and vacate the default judgment was denied December 14, 1922, and on same date final judgment was entered as follows: “Final Judgment. “This cause came on to be heard upon final hearing before a jury on this the 14th day of December, A.

D. 1922, and the jury having been empaneled and sworn herein to try the issues, and having heard the evidence submitted by the plaintiff, the defendant being represented in court by his attorney, Geo. F. Parker, but submitting no evidence, and after argument, and being charged by the court, after deliberations returned a verdict which was received in open court and recorded as follows: “We, the jury, find for the plaintiff and assess his damages at Three Hundred and Fifty Dollars. “Thereupon it is considered and ordered by the court that judgment is hereby rendered against the said E. R.

Wright, defendant, and in favor of John F. Nesmith, the plaintiff, and that the plaintiff recover of the defendant, E. R. Wright, the sum of Three Hundred and Fifty Dollars and no cents for damages besides costs now here taxed at.........Dollars and.........cents, and that plaintiff herein have execution therefor. “Done and ordered in open Court, at the Court House in Okeechobee, Okeechobee County, Florida, this the 14th day of December, A. D. 1922. “E. C. DAYIS, Judge.” Defendant Wright took writ of error from this final judgment.

The record seems to indicate that at the time defendant moved to amend his plea which was stricken by order of the court dated December 12th, 1922, he submitted along with said motion an amended plea, but the amended plea is not embraced within the record and it not being made to appear that the court abused his discretion there is no assumption for this court to indulge except that the order was correct. The final judgment also indicatés that a jury was empanelled and “having heard the evidence submitted by the plaintiff, the defendant being represented in court by his attorney, Geo. F.

Parker, but submitted no evidence,” found a verdict for the plaintiff in the sum of $350.00. The declaration sued on shows that the note was originally executed November 21st, 1916, for $500.00, with interest at the rate of six per cent, per annum payable semi-annually; that on December 8th, 1917, $300.00 was paid on the principal of said note and time of payment extended to April 1st, 1918.

The note further-shows that the maker, plaintiff in error here, agreed “to pay all costs of collection, including attorney’s fees.” There is an inference that the verdict embraced damages and attorney’s fees, but the bill of exceptions contains no evidence in support of the verdict and under the terms of the declaration, the verdict should have been for the amount of the principal with interest due-thereon December 14th, 1922, the date the verdict was returned including a reasonable attorney’s fee.

We think it proper to state that the record nowhere discloses that at the time the jury was empanelled, the issues of law and the right of the plaintiff to recover had been determined in his favor. The order of the court below overruling defendant’s demurrer and striking his plea was not such, a determination which seems to be a prerequisite to final judgment in common law actions in this State. In Cosmopolitan Fire Ins. Co. v. Boatwright, 59 Fla. 232, 51 South. Rep. 540, the proper practice in instances like this is well stated and we cannot do. better than urge conformity to the rule as therein outlined.

The amount of principal and interest due on said note December 14, 1922, including a reasonable attorney’s fee is substantially in accord with the verdict and judgment below. Such error as was made in procedure is, therefore, harmless, and the judgment of the Circuit Court is hereby affirmed. Whitfield, P. J., concurs. West, J., concurs especially. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.