The action of this Court in reversing the judgment of the trial court has brought forth such urgent, insistent protests from counsel for the defendants in error that we feel constrained to review our former holdings and again consider the record, which counsel insist furnishes no substantial ground for the conclusion *Page 79 reached; that the alleged error upon which the decision rests was harmless in the light of the proceedings as disclosed by the record, was not jurisdictional in character, and the assignments of error which challenged such action of the court upon which the reversal was based were abandoned.
This Court, by decision filed November 13, 1931, reversed the judgment of the trial court which was entered on the same day that an order was made by the court sustaining the plaintiff's demurrer to the amended pleas which were interposed to the declaration. In reaching its conclusion this Court said: "While in procedural matters a wide discretion is accorded the trial court, yet in the absence of anything to indicate trifling with the processes of the court, a final judgment on demurrer to pleas should not in general be rendered the same day an order sustaining a demurrer is filed for record, where the defendant or his counsel has no knowledge or notice of the order sustaining the demurrer without leave to amend, or of the application for final judgment made the same day the order on the demurrer is filed for record."
It is apparent from that language that the court did not question the power of the trial court, that is to say, its jurisdiction to enter the judgment in the circumstances disclosed by the record, but questioned only the propriety of the discretion exercised in entering a judgment for the plaintiffs upon the same day that an order was filed sustaining the plaintiffs' demurrer to the defendant's pleas "where the defendant or his counsel has no knowledge or notice of the order sustaining the demurrer without leave to amend, or of the application for final judgment made the same day the order on the demurrer is filed for record". The inference from the above quoted language is clear that if the defendant or his *Page 80 counsel had had notice of the order sustaining the demurrer or if an application had been made, with notice to the defendant, for judgment a different situation would have been presented in which no element of error would have impaired the trial court's exercise of discretion.
A petition for a rehearing was filed on November 23, 1931, in which it was pointed out that the judgment was reversed because of procedural matters which were not assigned as error and other procedural matters which after having been assigned as error were abandoned by plaintiff in error because of failure to argue such assignments; that no assignment of error was based upon the alleged want of notice to the defendant of the order on demurrer or lack of knowledge on defendant's part of such order before the judgment was entered; that the failure of the plaintiff in error to assign such alleged errors of procedure mislead the defendants in error into a sense of security afforded by the decisions of this Court holding that a trial court on sustaining a demurrer to pleas may immediately or thereafter enter final judgment on the demurrer and that consideration by the appellate court will be confined to errors assigned and argued by the plaintiff in error and that errors not assigned will not be considered.
It is pointed out with much cogency of reasoning that defendants in error were thus mislead to their injury in not availing themselves of the provisions of Special Rule 2 under which by additional instructions to the Clerk the transcript might have been made to disclose the true situation which was that the defendant, plaintiff in error here, did not desire to amend his pleas and was willing for the judgment to be entered in order that he might test immediately the correctness of the order sustaining the demurrer. *Page 81
The conclusion is irresistible that if the action of the court in entering the judgment was not void for lack of power to do so but was a mere irregularity of procedure, which would or would not be considered an abuse of discretion according to the circumstances in which the action was taken the defendant could have waived such irregularity expressly or impliedly and by failing to assign any error upon or failing to argue any assignment of error based upon any phase of such irregularity has indeed affirmatively waived such irregularity and is therefore in no position to claim or receive any benefit in this proceeding by reason of any such alleged irregularity.
It is also apparent that the negative inference drawn from the failure of the record in the circumstances to affirmatively disclose knowledge by the defendant of the judgment or his willingness to have the same entered that he was deprived of the privilege of tendering other pleas is a fallacy, not only because the plaintiff in error has failed to make the alleged error, consisting in an abuse of discretion, affirmatively to appear but because in procedural matters as well as all other matters in which the court acts within its jurisdiction the presumption obtains that all things were done and rules observed which are necessary to impart verity and binding force to the judgment. See Clements v. State, 51 Fla. 6,40 South. Rep. 432; Stewart v. DeLand-Lake Helen Special Road Bridge Dist. in Volusia Co., 71 Fla. 158, 71 South. Rep. 42; City of West Palm Beach v. Ryder, 73 Fla. 558, 74 South. Rep. 603; People's Realty Co. vs. Southern Colonization Co., 78 Fla. 628,83 South. Rep. 527.
Only such portions of the record as may be directed to be incorporated therein by the written demands of the parties are necessary to be included in the transcript. *Page 82 "Therefore the absence from a transcript of record of any evidence of this or that necessary step or action having been taken in the court below in a cause is not affirmative evidence to the appellate court that such necessary step or action was not in fact taken therein." Stokely v. Connor, 69 Fla. 412,68 South. Rep. 452.
The petition for a rehearing was denied by an order made January 7, 1932. The last decision of the Court rests upon the proposition that the entry of the judgment by the court below is affirmatively shown by the record to have been made while the defendant 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", but who had no knowledge of the plaintiffs' application for the judgment which was entered without notice to the defendant. That, it is stated, is a fundamental error of law on the face of the record and constitutes an exception to the rule that errors not assigned or not argued will not be considered by an appellate court. The opinion states that the error for which the judgment is reversed "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 final judgment against the defendantwithout his knowledge and without notice to him of suchprocedure".
It is also stated in the opinion that such fact is "plainly deducible from the recitals shown in the final judgment itself."
The record discloses that the judgment entered was not on default but was on the demurrer to the pleas and that the demurrer was sustained without leave to plead further. The judgment entry recites that it further appeared "to the court that the plaintiffs are entitled *Page 83 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". To say that the fact is plainly deducible from the recitals shown in the judgment, that the judgment was entered against the defendant without his knowledge and without notice to him of such procedure is to use hyperbole. So far from such fact being plainly deducible from the language of the judgment, it may with more accuracy be said that the contrary appears, for how could it appear to the court that the plaintiff was "entitled to entry of final judgment" unless the judge was aware that all required notices were given and procedural rules observed which were necessary to entitle the plaintiffs to the entry of judgment.
Where the presumption in favor of the correctness of the judgment is considered the recitals of the judgment amount to an affirmative statement that the defendant had knowledge of the judgment and ample notice of the procedure, if indeed such knowledge and notice were essential in the circumstances.
The last opinion in the case presumes that error was committed instead of following the contrary rule that error will not be presumed and must be made clearly to appear before the judgment will fall. The error thus made to appear is also required to be in its nature material and harmful otherwise the judgment will stand.
The right to be heard on the assessment of damages, that is to say, upon the matter of ascertaining the amount of damages to be awarded to the plaintiff, may be of value to the defendant if he desires to be heard where the action is for unliquidated damages for a breach of contract or the commission of a tort, but of what possible benefit it can be to him where the action is upon a written promise to pay a definite sum of money *Page 84 with interest and the amount to be recovered is a mere matter of mathematical calculation is impossible to perceive.
The declaration was upon two promissory notes to pay sums certain upon specific dates with interest at six per cent per annum and each note bearing the same date. The declaration was filed in March, 1929. There was a plea of privilege to be sued in Palm Beach County instead of Broward County where the action was brought and a demurrer to the plea was sustained. On April 13th eight pleas were interposed to the declaration. They were very lengthy consisting of seventeen pages of typewritten matter. In none of the pleas was the execution of the notes denied.
Demurrer to all the pleas was sustained on May 4, 1929. By order of the court leave was granted to the defendant to file amended or further pleas. The permission was granted on condition that notice of the application should be given by the defendant to the plaintiffs accompanied by a copy of the proposed amended pleas. The time within which the application should be made for leave to file the pleas was extended upon motion of defendant's counsel to May 29, 1929. On that date nine amended pleas were filed comprising nineteen pages of typewritten matter in none of which was the execution of the notes denied. Demurrers to those pleas, comprising thirty-one pages of typewritten matter, were interposed and on the 12th day of June, 1931, the court sustained the demurrers to each of the pleas "without leave to the defendant to file herein further or amended plea or pleas".
On the 13th of June motion for final judgment was made, affidavits submitted, the notes were produced and the amount of indebtedness ascertained by mathematical *Page 85 calculation, attorneys' fees allowed upon affidavit and judgment duly entered.
A writ of error was taken to the judgment a month later and made returnable two months and twenty days later. The record in the case discloses most clearly that the defense and only defense which the defendant conceived that it was possible for him to interpose was fully set forth in the original and amended pleas. Whether he should have been allowed an opportunity to file a second amended set of ples in an effort to present a valid defense is not now under consideration but may be involved under other assignments of error, but for the purpose of this discussion that question is immaterial.
Assuming that the court made no error in sustaining the demurrer to the amended pleas and declining to allow the defendant to interpose further pleas, there was nothing whatsoever remaining to be done but enter a final judgment on the demurrer and calculate the amount of principal and interest due upon the written promise to pay.
So in that matter no harm whatsoever was done to the defendant and there was no error whatsoever in the court's action. The petition for a rehearing was denied as stated and a motion was made to stay the issuing of a mandate and a supplemental petition for a rehearing was filed.
The mandate should be stayed and the petition for a rehearing should be granted. See Chapman v. St. Stephens Protestant Episcopal Church, decided January Term, 1932.
So ordered.
BUFORD, C.J., AND BROWN, J., concur.
WHITFIELD, P.J., AND DAVIS, J., concur in the opinion and order, *Page 86
ON REHEARING. Division A.