A petition for rehearing suggests that the Court overlooked the case of McCrary Co. vs. Dade County, 80 Fla. 652; 86 Sou. Rep. 612, wherein this court stated the common law practice to be that where pleas in a common law action are not responsive, and are immaterial, whether true or false, that they do not affect the rights of either party, and that where such pleas are not applicable to a declaration on file, that "plaintiff can ignore them and take a default."
It is insisted that if the rule of the above case were applied to this one, that we must reverse the judgment rendered by the lower court instead or affirming it as we have done. This is on the theory that the plea of "not guilty" being interposed to a declaration of two counts, one of which sounded in contract and the other in tort, was a nullity as applied to the second count of the declaration, which was in tort, and therefore plaintiff was permitted to disregard the plea as to the second count and have a default entered BY THE CLERK as to that count, notwithstanding the plea was in proper form, sworn to and filed in due time TO THE ENTIRE DECLARATION.
There are two answers to the proposition urged by petitioner *Page 1122 in asking for a rehearing, (1) the plea in this case was by its express terms interposed to the whole declaration, to a part of which namely, the first count, it was admittedly a proper answer, thereby presenting a question of law for the court to decide as to its sufficiency to answer the whole declaration; (2) there is nothing in McCrary Company vs. Dade County, supra, which holds that the CLERK may enter defaults, the entry of which would involve construing different counts of a declaration. Where plaintiff wishes judgment entered on the face of the pleadings, a motion to that effect can be addressed to the court only, and to the court alone is given the power to entertain and decide it.
The power of a clerk of the Circuit Court to enter judgments by default is limited. Such power does not extend to a case where a single plea is filed to a declaration consisting of more than one count, such plea being intended and filed as an answer to the declaration as a whole, but is good only as to one count and not as to the other one.
The fact that a pleading at law is broader in scope than it can be legally applied as an answer to the opposite pleading, does not make such pleading a complete nullity, because it is admittedly good in part for the purpose of answer or defense. The object of a default is to reach a case where the defendant offers no defense, or one so frivolous and unfounded as to amount to the same thing. Some defaults can be entered by the clerk, while others can only be entered by the judge. The judge only is authorized to enter the default when the entry of the default involves questions of law which must be decided in the construction and application of the pleading, such as its sufficiency to constitute a complete reply to the opposite pleading, when it is undoubtedly good as a reply to a part.
The case presented here is a case in which only the judge could have entered a default. The pleading which *Page 1123 was good to a part of the declaration was not good to the whole of it, altho asserted as such, but this was not a question within the province of the Clerk to decide by entering default as for want of any plea at all.
The petition for a rehearing is denied.
BUFORD, C.J., AND WHITFIELD, TERRELL, BROWN AND DAVIS, J.J., concur.
ELLIS, J., dissents.