Columbia County v. Branch

Citations

• 31 Fla. 62

Syllabus

<p>1. B., as plaintiff, declared specially in the first countin his declara tion on eight coupons set out in haeo verba, and hi a second count upon an account stated. Copies of coupons described in the first count alone were filed as a bill of particulars with the declaration. After demurrer sustained to plea of the defendant to the entire declaration, judgment by default for want of further plea was entered, and after sixty days from the entry of this default motion was made by defendant to open the default as to the common count; Held, That the bill of particulars filed with the declaration applied to both counts in the de'elarationt and the court did not err ill refusing- to set aside the defaul, because of the absence of a bill of particulars to the common count.</p> <p>2. In the absence of a bill of exceptions, the mere recitals of matters in pais in the record by the clerk will not authorize an appellate court to consider them as a part of the record brought up by writ of error.</p> <p>3. Every reasonable presumption is indulged in -favor of the correctness of the proceedings of the Circuit Court, but this presumption obtains in favor of its records in the absence of anything therein to overcome it. If the record shows that the count has proceeded erroneously, its action will be reversed on writ of error upon proper assignments of error.</p> <p>4. Where a plaintiff takes a default upon a declaration with a definite cause of action filed therewith as a bill of particulars, and standing- upon that default causes a final judgment to be entered, he is confined as to the amount of his judgment to the cause of action filed with the declaration, and it will be error for him, after the default has been entered, and while still insisting thereon, to amend the bill of particulars and take judgment for a much larger amount than was due on the original bill of particulars.</p>