Russ v. Gilbert

Citations

• 19 Fla. 54

Syllabus

<p>3. The opening of a default for want of a plea is within the sound discretion of the court, and this court will not interfere unless there has been a gross abuse of that discretion. It must appear that the ends of justice require that ti.e defendant be permitted to plead to war-rant, the reversal of an order refusing to open a default. A purely discretionary order will not be reversed.</p> <p>2. Where pleas had been prepared and left with a party to be sworn to and filed, and the party forgot to file them in time to prevent a default, and on an application to open the default no sworn plea, to the merits was tendered, no -affidavit of facts showing a substantial defence upon tlie merits, and no proof that the party had stated or exhibited to bis attorney all the facts of bis case upon which counsel advised him that lie had a substantia) defence upon the merits were read upon the motion, such application is addressed merely to the favor of the court, and not as a matter of right in furtherance of justice.</p> <p>3. When a defendant makes default by failing to plead, lie confesses tlie cause of action and right of recovery, but lie may, upon inquest. contest the amount of damages. In such case all the plaintiff' is required to prove, or the defendant is permitted, to controvert, is tlie amount of damages. - .</p> <p>A-: Section 33 of the act of 1828, (McClellan's Dig., 833. §87,) providing that the appearance of a. defendant by attorney will prevent a default for not pleading, is repealed by the second and sixth sections of the Practice act of 1873. Chapter 1938.</p> <p>o. A. default for not pleading may be entered on the Fourth ol’ July,” if that be a. rule day.</p>