concurring.
To a declaration in the usual form on a promissory note there was a demurrer which was overruled. Defendant thereupon filed a plea of never promised as alleged, which was upon motion promptly and properly stricken because inapplicable. Forbes v. Fort Lauderdale Merc. Co., 83 Fla. 66, 90 South. Rep. 821. Defendant was allowed until the next succeeding rule day to further plead. From recitals in the record it appears that a plea, or something in the nature of a plea, was filed, but upon motion this plea was also stricken and the clerk was directed by order of the court to do so, and did enter mmo pra tunc as of the rule day on which defendant was required to plead a judgment by default against him. This plea is not contained in the record. In its absence it must be assumed that it was considered by the court as inapplicable or as frivolous, or for other reason fatally defective as a plea to the action, else it would not have been stricken and default judgment directed to be entered as of the rule day on which the plea was filed. It can not be said, the plea not being contained in the record, that the order striking it was error. Presumably the order is free from error.
The amount of the note, principal and interest, to the date upon which the verdict was returned.and judgment entered, after allowing credit for the payment made as alleged, is $338.92. The maker obligated himself to pay all costs of collection, including attorney fees. The plaintiff claimed and alleged in his declaration that an attorney fee of $50 would be reasonable. The verdict for $350 awards *550him less than one-fourth of this amount, less than 5 per •cent, of the amount recovered, as attorney fees.
There is nothing to indicate that the bill of exceptions contains all the evidence introduced at the trial. It must therefore be treated as not embracing all the evidence. Special Rule'l, Rules of Circuit Courts — Law Actions. The presumption therefore is that there was evidence before the jury to support the verdict. Dibble v. Truluck, 11 Fla. 135; Frisbee v. Timanus, 12 Fla. 537. At any rate, in the absence of an affirmative showing that all the evidence is contained in the bill of exceptions, this court can not say that the verdict is not supported by the evidence.
When the last plea of defendant was ordered stricken, which was in term time, the court directed the clerk to enter default judgment, nunc pro tunc as of the rule day on which defendant was required to plead, which was done. If the plea filed was so defective as to amount to no defense, as it must have been since the court ordered it stricken, the clerk might properly have entered a default judgment on rule day because of defendant’s failure to plead. Register v. Pringle Bros., 58 Fla. 355, 50 South. Rep. 584; Dudley & Co. v. White, 44 Fla. 264, 31 South. Rep. 830; Trower v. Bernard, 37 Fla. 226, 20 South. Rep. 241. The court’s order, therefore, directed that to be done which could have been done by the clerk without the order. During the term at which this order was made the trial judge denied a motion of defendant to set aside the default judgment, which the order recites had been previously entered. Thereupon the cause was submitted to a jury for the assessment of plaintiff’s damages, and upon the verdict returned judgment was entered in plaintiff’s favor.
This case is differentiated from Cosmopolitan Fire Ins. Co. v. Boatwright, 59 Fla. 232, 51 South. Rep. 540, in that there the judgment by default against defendant was en*551tered by the clerk on a day other than a rule clay and not in term time, while here, before proceeding to trial, the court, during the term, directed a judgment by default to be entered against the defendant, which was done. The doctxune of that case is inapplicable and should not be extended to a case of this kind. Besides, if the procedure adopted by the trial court in this case was technically erroneous, which I do not concede, it is not ground for reversal of the judgment.
In Huffstetler v. Our Home Life Ins. Co., 67 Fla. 324, 65 South. Rep. 1, this court said: “Upon sustaining the demurrer to the pleas, the txúal court allowed the defendant until a specified day in which to plead further. The defendant failed to file any further pleas and the plaintiff filed a preacipe for a default. No default' was actually entered by the clerk upon this preacipe. At a later date the plaintiff filed a motion for a default nil dic.it against the defendant, which would seem not to have'been acted upon xxntil the trial of the cause, but the final judgment recites that a default is entered against the defendant because of lxis failure to plead over. That the plaintiff was legally entitled to such default there can be no question. As we held in Thomas v. Nathan, 65 Fla. 391, 62 South. Rep. 206, ‘Where there is in fact a default, the omission to make an entry thereof may be a merely technical and harmless error. ’ The assignments based upon the action of the court in empaneling a jury and submitting the cause for the assessment of damages prior to the actual entry of the default are without merit. ’ ’
This seems to me to be conclusive. If it were not sufficient, the harmless error statute (§2812, Rev. Gen. Stats.) enacted since the decision in Cosmopolitan Fire Ins. Co. v. Boatwright, supra, forbids the reversal of a judgment “for error as to any matter of pleading or procedure ’ ’ unless the *552court shall be of the opinion, after an examination of the entire case, that the error complained of has resulted in a miscarriage of justice. It is patent that no miscarriage of justice resulted from “the error complained of” here.
For the reasons stated herein I concur in the affirmance of the judgment.