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Russ v. Gilbert et ux.-Opinion of Court.

rule day in July; that the instructions escaped his attention until a day or two before the time, when he looked for them and could not find them until the day after they should have been filed, and then brought them down to be filed; that he believes he has a good and substantial defence to the action, and his attorney has so advised him after having made a thorough examination of the case. He learned from his attorney that he had requested the attorney of plaintiff to open the default, and plaintiff's attorney said he would if his client did not object. Defendant's attorney states that he drew up the pleas and handed them to Mr. Guyton to be sworn to and filed. He applied to plaintiff's attorney to open the default very soon after it was entered, and said attorney consented to do so if his client would consent, and in consequence of this promise he did not make application to the Judge within sixty days to open the default.

The act of 1873, Chapter 1938, Section 6, provides that the court or Judge may, in term time or vacation, give the defendant further time to plead, and the court or Judge may, for good cause shown to him, open any default or judgment for want of appearance or plea and allow further time, "but the application therefor must be made within sixty days from the time of the entry of such default or judgment, unless a term of the court shall, in the meantime, be held, when such application must be made during such term."

Assuming that the reason of the attorney for failing to apply to the Judge within sixty days is an excuse for his delay, to-wit: that the opposing attorney had not notified him that he would not consent, the showing made by the affidavits is far from sufficient to give the right to demand a reversal of the order of the Judge refusing to open the default. The cause shown would not be sufficient if the

Russ v. Gilbert et ux.-Opinion of Court

application had been made within that time. The defendant, neither by his own affidavit nor by that of his agent or attorney, does not offer any sworn plea howing a defence, nor affidavits showing facts from which it can be inferred that he has any defence. The agent says "he believes that he has a good and substantial defence, and his attorney has so advised him after having made a thorough examination of the case." Now here is no fact whatever from which the Judge can determine that any defence exists, or that the application was made in good faith. And it is noteworthy that the attorney in his affidavit does not state any such facts, nor even that the "examination of the case" by him had induced him to believe that a defence on the merits of the case existed. The statement of the agent that the attorney told him so proves nothing as to an existing defence. It is, therefore, not shown that the defendant had any defence upon the merits, not even that a plea of any character was sworn to by the defendant or his agent or attorney.

The rule as laid down in Waterson vs. Seat, et al., in 8 Fla., on Loring vs. Wittick, 16 Fla., has been ignored in making this application. The case is one simply of an application to set aside a default regularly entered without any showing of merits, and is addressed merely to the favor of the court.

Appellant's counsel insists that under Section 22, act of 1828. (McClellan's Dig., 822, $37,) the entering upon the appearance docket of the name of defendant's attorney is equivalent to filing the general issue so as to prevent a default, though no plea be filed. That was undoubtedly the effect of that section, but the second and sixth sections of the Practice act of 1873. (Ch. 1938) have repealed Section 22 of the act of 1828, and provided that an appearance en

Russ v. Gilbert et ux.-Opinion of Court.

tered only prevents a default for want of appearance and not a default for not pleading.

As to the alleged error in regard to refusing to permit the witness (plaintiff) to answer whether she had not sold the land in question; and the error assigned in respect to the proof of the deed offered by the plaintiffs, it is only necessary to say that the plaintiff's title or right of recovery alleged in their declaration stood confessed by the default, and it was not necessary to prove it. "When the defendant is summoned to plead to the action, he stands mute (by his default), and thereby confesses the plaintiffs' cause of action and right of recovery; but when a motion is made to assess the amount of the plaintiffs' damages he replies and claims the right to contest that question. * The authorities go to the fact that whatever would have been a bar to the action itself cannot be given in evidence in mitigation of damages." All the plaintiff has to prove or the defendant is permitted to controvert is the amount of damages. (Watson vs. Seat and Crawford, 8 Fla., 446, 449; Comyn's Dig. Pleader, C.; Harlan vs. Smith, 6 Cal., 173; 15 Cal., 26.) There was no issue to be tried.


It was suggested and urged with commendable patriotic fervor that the default having been entered on the "glorious fourth" of July, it was void, that day being dies non, or a national holiday. Our statute on that subject merely provides that the fourth of July shall, in regard to bills and notes, be treated as a public holiday, and presentation for acceptance or payment may be made on the preceding day. Courts and business are not inhibited on those days.

The judgment is affirmed.

Groover et al. v. Coffee-Syllabus.


1. Documents purporting to be issued by the Executive of another State, bearing its seal, are recognized without other proof of their execution than the inspection of its seal.

2. A grant by the Governor of Georgia in 1842 of land lying on the boundary between Georgia and Florida, which land was then, and was for a long time prior thereto, had been considered by her within the territorial limits of Georgia, and incorporated within one of her counties, and over which the authorities of that State had long exercised the usual powers of government, may be received as evidence in the chain of title, although upon a final location of the boundary line by agreement between the States, ratified by Congress, the land falls within the present boundary of Florida.

3. Where the subscribing witnesses are dead, or beyond the jurisdiction of the court, the execution of a deed may be proved by evidence that the signatures of such witnesses are genuine.

4. A deed of the Trustees of the Internal Improvement Fund is prima facie evidence of title in the grantee, but such title may be overcome by a superior title.

5. A certificate of the Commissioner of Lands and Immigration, stating that certain lands had been patented by the United States to this State, is prima facie evidence with respect to ownership by the State or the Trustees of the Internal Improvement Fund, under Chapter 2063, Laws of 1875. McC.'s Digest, 515, Sec. 10. 6. A certificate of the Commissioner of Lands and Immigration, that a sale of certain land described had been made to a person named at a previous date, such certificate not being a deed, agreement or contract for the sale of lands or a copy thereof, is not evidence under the statutes. Mc.'s Dig., 515.

7. Parol testimony that a certificate of entry of lands at the land office had been issued and had been assigned by the purchaser is not admissible, unless it be shown that the writing has been lost or destroyed, or is in possession of the opposite party.

8. The survey of the boundary line as located and marked by Orr and Whitner under the authority of the States of Georgia and Florida, having been adopted by the Legislatures of the two States on the 8th of February, 1861, as the true boundary line, and the

Groover et al. v. Coffee-Argument of Counsel.

same having been substantially ratified by Congress in 1872, that line is regarded as the settled boundary between the two States from the junction of the Flint and Chattahoochee rivers to Ellicott's Mound on the St. Mary's river.

9. The State of Georgia, long prior and subsequent to the year 1842, was in actual possession, exercising its jurisdiction and sovereignty, of the territory south of the boundary line as now settled and north of a line called the "Watson line,” and in that year granted a quantity of land bounded by the Watson line; the grantee entered into actual possession under the grant, and he and his grantees have been in the actual occupation and have cultivated the land from that date up to a recent period, when they were dispossessed by one claiming title under a patent issued by the United States Land Office to the State of Florida and a deed from the Trustees of the Internal Improvement Fund. The boundary line between Georgia and Florida had been in doubt and in dispute between these States since 1842, until it was settled by agreement in 1861 between the two States and the sanction of Congress in 1872, and located north of the Watson line; Held: (a.) That "grants by a government de facto of parts of a disputed territory in its possession" are valid, and the rights to property so acquired “are respected and sacred." (b.) That upon this principle of the law of nations the grant by the State of Georgia conferred a right to the property conveyed to the grantee (c.) That a subsequent patent issued to a third person by the United States covering the same land does not divest the purchaser from the State of Georgia or his grantees of the title and right of possession claimed under the Georgia grant.

Appeal from the Circuit Court for Jefferson county, the case having been transferred from Madison county.

The facts of the case are stated in the opinion.

Pasco & Palmer and C. W. Stevens for Appellants.

Angus Paterson for Appellee.

In the year A. D. 1839 John Coffee, a brother of the defendant, settled the land in controversy, the same not being in market, and afterwards sold his claim to the defendant. After the said land was patented to the State of Florida as

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