Cobb v. Trammell

Citations

• 73 Fla. 574
• 74 So. 697

Syllabus

<p>1. The entry of a final judgment by the clerk of the court under , the provisions of Section 1425 of the General Statutes of Florida, 1906, presupposes the entry of a valid default against the defendant for want of an appearance, demurrer or plea.</p> <p>2. A motion by defendant in a civil action for compulsory amendment of the declaration or to strike it, filed before the rule day on which he is required to plead or demur to the declaration, and which motion is not frivolous upon its face, but presents questions affecting the plaintiff’s right to proceed with the cause, suspends the power of the clerk under Section 1422 of the General Statutes, 1906, to enter a default against the defendant for- failure to plead or demur.</p> <p>3. A motion by defendant to strike the declaration or for compulsory amendment of it, which is pending and undisposed of upon the rule day when under the statute he is required to plead or demur, may not be ignored by the plaintiff and a default taken unless the motion is frivolous and wholly without merit and such an one that a determination of it either way could not affect the right of the plaintiff to proceed with the cause.</p>