The judgment in this case was reversed November 13, 1931, because the Court entered final judgment against defendant on sustaining demurrers to pleas, *Page 75 where counsel for defendants had no knowledge of this action and no notice thereof was given.
A petition for rehearing suggests that the opinion reverses the judgment of the lower court solely because of procedural matters which were not assigned as error, or which having been assigned as error, were abandoned or waived by failure to argue the assignments.
The previous opinion is in harmony with the principle of law, long established and adhered to by this court, to the effect that all litigants should have an opportunity to properly formulate and present the issues involved in litigated matters, and that the trial judge has no right to peremptorily and without notice to adverse parties, deny litigants the right to interpose and properly formulate defenses to actions in courts of law. Hart v. Prince, 97 Fla. 1087, 125 So. Rep. 243.
The entry of final judgment as it appears in the transcript expressly recites that "this day came the plaintiffs, by their attorneys of record in this cause, and move the court for final judgment on demurrer, and it appearing to the Court that the demurrer of the plaintiffs to the defendants' amended pleas was sustained to each and every of said amended pleas, without leave to the defendant in this cause, further or amended plea or pleas, . . . . and it further appearing to the court that the plaintiffs are entitled to entry of final judgment, and ought to have and recover of and from the defendant, Michael E. White, their damages sustained herein by reason of the premises, wherefore plaintiffs having filed and submitted the two original promissory notes sued on as their cause of action . . . . it is therefore considered, ordered and adjudged by the Court that the plaintiffs, Charles S. Crandall and Ada M. Crandall, . . . . do have and recover etc.,"
Whatever presumptions would otherwise obtain in *Page 76 favor of the judgment (Stokely vs. Conner, 69 Fla. 412,68 So. 452) are overthrown by the recital to the effect that judgment was entered and damages assessed at the instance of the plaintiffs alone, without knowledge of, or notice to, the defendant who was not in default, and who was entitled to be notified of the assessment of damages and to contest the same as to amount if he saw fit. Even in cases of defaults, defendants have the right to contest the question of damages (Watson vs. Seat, 8 Fla. 446) and where defendant is not in default, but judgment is being entered against him on a demurrer sustained to his pleas, he is not only entitled to the right to contest the damages, but to notice of the subsequent proceedings as well, so that he might take proper steps in the form of motions and other proceedings to have his rights recognized and the proper record entries made to enable him to take writ of error, if he so desires.
While in this case there are assignments of error directed against the propriety and lawfulness of the entry of the final judgment appealed from, this Court has held that it can, and will consider without assignment, such errors as are jurisdictional and fundamental in character. Gunn v. State,78 Fla. 599, 83 So. 511; Parker vs. Dekle, 35 Sou. Rep. 4, 46 Fla. 452; Hoodless vs. Jernigan, 46 Fla. 213, 35 Sou. Rep. 656; Lovett vs. Lovett, 93 Fla. 611, 112 Sou. Rep. 768; Demeter Land Co. vs. Florida Public Service Co., 99 Fla. 954,128 Sou. Rep. 402. Fundamental errors of law apparent on the face of the record constitute an exception to the rule that errors not assigned or not argued will not be considered by an appellate court, or will be treated as abandoned. Parker vs. Dekle, supra.
To enter judgment against a defendant as if he were in default, when he is not shown to have been adjudged in default, is a fundamental error of the character which *Page 77 may be considered by an appellate court within the foregoing rule, and the judgment reversed therefor, in order that appropriate proceedings may be taken to have a proper judgment entered, and a proper opportunity afforded the injured party to present such matters as may enable him to develop a record such as will support proper assignments of error, in the event he desires to prosecute a writ of error.
The error for which the judgment has been reversed in this case is not the bare fact of entry of judgment against defendant on sustaining demurrers to his pleas, immediately or thereafter, but is because the court entered an order sustaining the demurrers to the pleas and thereafter assessed damages and entered a final judgment against the defendant,without his knowledge and without notice to him of suchprocedure, — the latter fact being plainly deducible from the recitals shown in the final judgment itself.
The reversal leaves the case exactly where it was when the court sustained demurrers to the pleas, and appropriate proceedings may be taken to have a proper assessment of damages made and a proper final judgment entered, on the demurrer to the pleas which has been sustained, notice thereof being first given to the defendant who is not in default merely because demurrers to his pleas have been sustained and permission to plead further refused.
As a general rule, defendant who has been refused permission to plead further, has the right to tender further pleas for filing in order that they may be considered by the court, and if permission to file them is refused, to have the refusal properly excepted to and made the basis for inclusion in a bill of exceptions as a predicate to appellate consideration and review on writ of error. Notice or knowledge on defendant's part that *Page 78 the court has sustained demurrers to his pleas and proposes to enter final judgment without permission to plead further, is therefore an essential requirement of law, which it will be error for the court to ignore in entering final judgment under such circumstances, and no previous decision of this court appears to hold otherwise as to the requirement of either knowledge or notice to a party not in default.
Upon remand of this cause the Court may either enter final judgment on the demurrers which have been sustained, or may permit further pleadings by defendant, but in either event, defendant should be advised of the proceedings to be taken further, before his rights are finally foreclosed by a final judgment against him, since he is not in default. The record before the court is not sufficient to support a presumption in favor of the judgment that this important right has been accorded to the defendant in regard to the present judgment, therefore the judgment has been properly reversed by this court for the fundamental error apparent on the face of the record, if for no other good and sufficient reason, and the petition for a rehearing should accordingly be denied.
Petition for a rehearing denied.
WHITFIELD, P.J., AND TERRELL AND DAVIS, J.J., concur.
BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur in the opinion and judgment.