Einstein's Sons & Leffler v. Davidson

Citations

• 35 Fla. 342

Syllabus

<p>DEFAULT JUDGMENT — WHEN CAN BE VACATED ON MOTION — VOID \\ND VOIDABLE JUDGMENT.</p> <p>1. Where a final judgment entered by the clerk on a rule day, after default duly taken and entered, recites that the clerk “assessed the damages on one proven account herein filed, seven hundred and three dollars and thirteen cents,” such judgment is-not void up>on its face upon the ground that it does not show.that the clerk acted upon proof of the account sued upon as¿ required by our statute before he was authorized to enter such* final judgment. Held, further, That after sixty days had® elapsed from the entry of the default upon which such fina S judgment was predicated, the circuit judge had no power to> vacate or set it aside upon motion, because of errors or irregularities in the entry thereof, touching the proofs on which itr was entered, that were not apparent upon the face of the> judgment itself, unless a term of the court intervenes prior to-the expiration of the sixty days from the entry of the default, and, in such case, such motion could be made only during the-.continuance of such intervening term.</p> <p>2. Where a final judgment entered by the clerk upon a default is-not void upon its face, but is voidable only, because of matters. dehors the face of the judgment itself, it passes beyond the-control of the Circuit Court in which it is entered, and becomes an absolute verity, after the lapse of sixty days from-the entry of the default upon which it is predicated, unless set aside or reversed by an appellate court in some appellate proceeding taken for its review.</p> <p>3. A judgment that is absolutely null and void — a mere brutumfulmen — can be set aside and stricken from the record on motion» at any time, and may be collaterally assailed, but the-judgment that is voidable only, because irregular or erroneous, must be moved against in time by motion to vacate, or by resort to-an appellate tribunal, otherwise it becomes an absolute verity,, and passes beyond t