Benedict v. W. T. Hadlow Co.

Citations

• 52 Fla. 188

Syllabus

<p>1. Whether a default properly entered should be set aside is for the determination of the court in the exercise of a sound judicial discretion, upon a consideration of all the facts and circumstances of the particular case, which should show the good cause required by the statute; and while the determination of the court is subject to review, the appellate court will not interfere unless the record shows a gross abuse of discretion. The defendant should at least present facts reasonably excusing the failure to appear, and show by plea or by affidavits or otherwise facts which constitute a good defense to the merits, and also an offer to go to trial at o:nce upon a material issue.</p> <p>3. The absence of the seal of the court frcxn the summons and be disturbed on writ of error when service of summons was duly made and the defendant failed to appear before default was taken, and in an affidavit in support of the motion -to set aside the default states “that through inadvertence she did not retain an attorney to defend said suit and enter her appearance” and there is no claim that she had retained or supposed she had retained an attorney before or after the service of the summons on her and before default was 1aken.</p> <p>3. The absence of the sal of the court from the summons and the omission from the praecipe of a statement of the nature of the action are at most amendable defects and such omissions in no way affect the jurisdiction of the court or the legality of the proceedings,</p> <p>4, When the defendant desires to take advantage of the omission of the seal of the court from a summons and the omission of a statement of the nature of the action from a praecipe it should be done before default, and it is too late to move to quash the summons and service and in arrest of judgment because of such omissions, after a motion has been made to set aside the default on grounds which recognize the jurisdiction of the court, particularly when no complaint is made of th