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Skinner v. Pinney-Opinion of Court.

from the plaintiff's land by the defendant, is strictly in accord with the rule of law laid down by this court and by all other courts, as we understand them, with the exception mentioned of the few cases where courts modified the rule in favor of innocent purchasers after conversion and cases of innocent mistake.

It follows that the ruling of the Judge in excluding testimony as to the value of the standing trees and the expense of cutting and hauling to the water, and the value of the logs at the place to which they had been towed by defendant's boat after leaving plaintiff's possession, was not erroneous. The ruling is in precise accord with the argument of appellant's counsel that the value at the time. of the actual conversion, and not the value at a subsequent time or at another place, is the true guide. The value of the logs when taken from the plaintiff's possession was the measure given to the jury, and we find no case where a rule more favorable to the defendant has been given upon facts similar to those in the present case.

The defendant claims that if he was a trespasser at all he was an innocent one; that he believed the property was his own, and there is no element of wilfulness or malice. But before he removed the logs he was notified by plaintiff's agent in possession that the land belonged to plaintiff. But he continued the cutting, and removed all the logs after this notice.

As to the evidence of title introduced by the defendant, it could not avail him because the Trustees of the Internal Improvement Fund or the State had no title, the land having been granted by Congress to a private party, under which title the plaintiff was in possession.

The plea that the plaintiff had no title to the logs, and that he was not entitled to possession, was not supported therefore by the deeds of the Trustees, or by any other evi

Russ v. Gilbert et ux.-Syllabus.

dence in the case. Nor could the defendant defeat the right of recovery even if the plaintiff's title rested ouly in possession and the absolute title was in a third person, for according to the general tenor of authority in this country the defendant in trover cannot set up the title of a third person in defense, unless he, in some manner, connects himself with that title. Duncan vs. Spear, II Wend., 54: Weymouth vs. C. & N. W. R. Co., 17 Wis., 550; Barwick vs. Wood, 3 Jones, 306; Harker vs. Dement, 9 Gill, 7: Moore vs. Aldrich, 25 Tex., (Supp.) 276.

The judgment is affirmed.

JOSEPH W. Russ, Appellant, vs. JOHN B. GILBERT ET UX., APPELLEES.

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1. The opening of a default for want of a plea is within the sound discretion of the court, and this court will not interfere unless there has been a gross abuse of that discretion. It must appear that the ends of justice require that the defendant be permitted to plead to warrant the reversal of an order refusing to open a default. A purely discretionary order will not be reversed. 2. Where pleas had been prepared and left with a party to be sworn to and filed, and the party forgot to file them in time to prevent a default, and on an application to open the default no sworn plea to the merits was tendered, no affidavit of facts showing a substantial defence upon the merits, and no proof that the party had stated or exhibited to his attorney all the facts of his case upon which counsel advised him that he had a substantial defence upon the merits were read upon the motion, such application is addressed merely to the favor of the court, and not as a matter of right in furtherance of justice.

3. When a defendant makes default by failing to plead, he confesses the cause of action and right of recovery, but he may, upon inquest, contest the amount of damages. In such case all the plaintiff is required to prove, or the defendant is permitted to controvert, is the amount of damages.

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

4. Section 22 of the act of 1828, (McClellan's Dig., 822, §37,) providing that the appearance of a defendant by attorney will prevent a

default for not pleading, is repealed by the second and sixth sections of the Practice act of 1873, Chapter 1938.

5. A default for not pleading may be entered on the "Fourth of July," if that be a rule day.

Appeal from the Circuit Court for Jackson county.
The facts of the case are stated in the opinion.

D. L. McKinnon for Appellant.

B. S. Liddon for Appellees.

THE CHIEF-JUSTICE delivered the opinion of the court. This was an action of ejectment commenced by appeilees against appellant in Jackson county. The declaration was filed and process issued in May, returnable at rule day in June, 1881. Summons was served May 14th, and on the rule day defendant entered his appearance by attorney. On rule day in July, no plea or demurrer having been filed by defendant, his default was duly entered. At the Fall Term, November 16th, 1881, a motion was made to open the default upon affidavits of the agent of the defendant and of his attorney, which motion was denied. Affidavits. were read upon the hearing of the motion, which are referred to hereafter.

After the denial of the motion an inquest was had by a jury, who found for the plaintiff and assessed the damages for mesne profits, for use and occupation of the premises, at one hundred and fifty dollars, on which final judgment was rendered against defendant.

Upon the inquest defendant appeared by counsel. Mrs. Gilbert was sworn on the part of the plaintiffs and testified that the land in question was deeded to her by one Swails; that the deed was lost and she was unable to find it. De

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

tendant's counsel, upon cross-examination, asked the question: "Did you sell the land in question to W. S. Spears?" The question was objected to by plaintiff's counsel on the ground that by the default of defendant he was not entitled to give cvidence of matters of defence, and the objection was sustained. Plaintiffs then offered in evidence the record book of deeds containing a deed from P. J. Swails to Louisa C. King, conveying the land in question. was objected to on the ground that it was not per se evidence, but the due execution of the deed should be proved by the attesting witnesses; but the Judge overruled the objection and permitted the deed to be read in evidence.

This

The appellant assigns for error: 1. The ruling of the court refusing to set aside the default and permitting him to plead. 2. In refusing to permit the question to Mrs. Gilbert to be answered as to her sale of the property. 3. In permitting the introduction of the record of the deed without proof of its execution; and lastly, that the default was illegal because it was entered on the fourth of July, a national holiday.

This court, in Waterson vs. Seat and Crawford, 10 Fla., 326, said that whether a default should be opened depended upon all the facts and circumstances of the case. The court reversed the ruling of the Circuit Judge, who refused to set aside the default where the defendant showed by his affidavit that he had a meritorious defence to the action, and was corroborated by the testimony of other persons conversant with the facts; that the pleas had been prepared and placed in the hands of one of his attorneys to be filed, and there was no culpable negligence on his part, he being unavoidably absent at the time the default was entered. One of his attorneys died about that time. The court reversed the ruling of the court below on the ground that the exercise of sound discretion required that the defend

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

ant should have been permitted to make his defence, he having shown to the court the existence of facts constituting a defence upon the merits, and had been guilty of no culpable negligence.

We held, in Loring vs. Wittich, 16 Fla., 617, that where, in a matter of this character resting in the mere discretion of the court below, its order would not be reversed for error, and we said that had the defendant tendered a good plea to the merits or filed an affidavit of merits, and offered to go to trial at once upon a material issue, the court might well have permitted him to plead, but this was a matter addressed to the sound discretion of the court.

Says the Supreme Court of Illinois, in the Union Hide and Leather Company vs. Woodley, 75 Ill., 435: "It is a matter resting in the sound discretion of the court to whom an application is made whether a default shall be set aside, and an appellate court will not interfere unless there has been a gross abuse of the discretion." Greenleaf vs. Roc, 17 Ill., 474; 51 Ill., 232; 83 Ill., 192; 90 Ill., 543; see, also, cases cited in Loring vs. Wittich.

If it appears that the ends of justice require it, the judgment by default will be set aside on terms and the defendant allowed to defend. Taylor on Eject., 441.

This comprehends the rule in 10 Fla., 326, above cited. If the defendant has not been guilty of culpable negligence, and shows that he has a meritorious defence, offers to plead it and go to trial without delay, it would be a gross abuse of discretion to refuse to allow him to defend himself, and in such case this court, by virtue of its corrective power, would set aside such abuse of judgment.

What is the case before us in respect to this question? Mr. Guyton, defendant's agent, says that the attorney of defendant drew up some pleas for defendant to swear to about June 1, with instructions to file them on or before

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