Parker v. Dekle

Citations

• 46 Fla. 452

Syllabus

<p>1. In actions at law, while, generally speaking, the consideration of the appellate court will be confined to the errors assigned and argued by the plaintiff in error, yet to this rule there are certain exceptions. Where a jurisdictional or other fundamental error of law is apparent on the face of the record itself, such error may be considered by the appellate court, though it is not assigned.</p> <p>2. The statute (section 1035, Rev. St.) that gives authority to clerks to enter final judgments contemplates that the clerk can enter a final judgment after default only in those cases where the cause of action is purely and simply a money demand founded upon a contract for the payment of money only. In cases where extrinsic evidence dehors the contract sued upon is necessary to ascertain the amount to be recovered, the clerk has no authority to entertain such evidence or to found a final judgment thereon.</p> <p>3. Upon a hearing in damages, after the overruling or sustaining ' of a demurrer, the case stands with reference to the evidence</p> <p>necessary for the plaintiff and admissible for the defendant, precisely as it would have stood upon a default.</p> <p>4. To ascertain what would be a reasonable attorney’s fee in any case requires the introduction of testimony, and to enter up a judgment including attorney’s fees, unless the amount of said attorney’s fees is definitely provided for or specified in the cause of action, without proof as to what would constitute a reasonable attorney’s fee, is error.</p> <p>5. The proper practice in an action at law, where testimony is necessary for the ascertainment of damages, is to have the assessment of damages in such case made by a jury.</p>