Tidwell v. Witherspoon

Citations

• 18 Fla. 282

Syllabus

<p>1. That a paper purporting to be a copy of a summons served by the sheriff was not a true copy of the original on which a return of service was made, is not good ground of motion to dismiss the suit, but only to set aside the return of service, if the defect or variance is material.</p> <p>2. A sheriff’s return of due service of a summons in the manner prescribed by law is conclusive as to jurisdiction of parties, unless the same is impeached by satisfactory evidence.</p> <p>3. Where an attorney appears “ specially, not waiving the right to take advantage of errors and defects in the summons, or to move for a dismissal of the cause on account thereof,” this is not a genera^ appearance waiving the very defects indicated.</p> <p>4. Where a clerk has entered defendant’s appearance by an attorney, and the attorney testifies that he did not authorize such entry, which statement is not contradicted, the clerk’s memorandum cannot bind the attorney or the party.</p> <p>5. Where a default is entered for want of a plea, and there is sufficient cause shown for setting it aside and granting leave to plead, and an . order is made to plead instanter, if the time allowed is not sufficient, application should be made to the court to enlarge the time. The judgment of the attorney that more time is necessary is no legal excuse for non-compliance with the order.</p> <p>6. The neglect of an attorney to file a plea under a rule of court fixing the time of pleading; should not operate to the prejudice of the party on his application to set aside a second default, upon his tendering a good plea and an affidavit of merits with a sworn statement showing that he is without fault, especially where the neglect of the attorney was not such as to give a right of action against him for negligence.</p> <p>7. The neglect of an attorney to prepare and file a plea, caused by his being summoned to a distant place on account of the serious illness of his wife, even though he might have made arrangem