On April 13, 1896, the defendant corporation filed a demurrer to the declaration stating the following, among other grounds: (1) That it does not set forth such facts as authorize recovery on the part of the plaintiff. (4) That it does not show that the defendant agreed to employ the plaintiff for one year, or any specified time. (5) That it did not show what the plaintiff claimed was to be paid either monthly, quarterly, or yearly. The demurrer was verified, and the plaintiff joined issue thereon on April, 16, 1896. On a hearing of the demurrer on August 25, 1896, it was overruled, and defendant allowed till the 15th of September, 1896, to plead. Pleas were subsequently filed, and the case was tried at the fall term, 1896. The jury rendered a verdict for the plaintiff for $744.83, upon which final judgment was entered. Sparkman & Sparkman and E. K. Foster, for plaintiff in error. Alex. St. ClairAbrams, for defendant in error. HOCKER, C. (after stating the facts). The demurrer to the declaration contained, among others, the grounds: First, that such facts as are necessary to a recovery are not stated; fourth, that the terms of employ. ment, whether by the day, year, or any other specified time, are not stated; fifth, that it is not stated whether the plaintiff was to be paid monthly, quarterly, or yearly. These grounds present the question upon which the case will be disposed of. A declaration upon which a plaintiff founds his right of recovery must allege every fact that is essential to his right of action. Telegraph Co. v. Maloney, 34 Fla. 338, 16 South. 280. The declaration, while alleging that plaintiff "was agreed to be employed by the proper officer of the defendant corporation," and that "the defendant informed the plaintiff that it could give him employment as conductor," nowhere states the duration of his employment, nor are the facts alleged sufficient to infer it. From the allegations in the declaration it must be taken as an employment at will, terminable by either party. No action can be maintained for the breach of a contract to employ unless there is some stipulation as to the length of time for which the employment shall continue. Blaisdell v. Lewis, 32 Me. 515; De Briar v. Minturn, 1 Cal. 450. If a term of employment be discretionary with either party, or be indefinite, either party may terminate it at any time. Wood, Mast. & Serv. (2d Ed.) 133; also Id. § 81; Commissioners v. Brown, 32 N. J. Law, 504; Shaw v. Glass Works, 52 N. J. Law, 7, 18 Atl. 696. The order of the court overruling the demurrer to the declaration was erroneous. The judgment is reversed, and the cause remanded. MAXWELL and GLEN, CC., concurred. PER CURIAM. The foregoing opinion has been examined by the court, and is hereby approved and adopted, and ordered to be filed as the opinion of the court in said cause. SOUTHERN INS. CO. OF NEW ORLEANS v. SMITH-TYLER. (Supreme Court of Florida. Nov. 1, 1901.) 1. An entry of final judgment by the clerk after default must be sustained by affirmative record evidence of every fact essential to show that the act of the clerk was authorized and legal. 2. Where a plaintiff confesses a demurrer to his declaration by filing an amended declaration under rule 30 of rules of circuit court, a copy of such amended pleading must be served on the adverse party before he is required to reply thereto. A default entered against him for failure to plead to such amended declaration, where no notice, or copy of same, is served on him, is illegal, and should be set aside. 3. A paper purporting to be a copy of a letter from plaintiff's attorney to defendant's attorney, asserting that a copy of an amended declaration was therein inclosed, filed with the clerk by plaintiff's attorney some months after the entry of final judgment against defendant, with nothing more, is not evidence that such copy of the amended declaration was served on defendant. (Syllabus by the Court.) Error to circuit court, Orange county; John D. Broome, Judge. Suit by W. S. Smith-Tyler against the Southern Insurance Company of New Orleans. Judgment for plaintiff. Defendant brings error. Reversed. A. W. Cockrell & Son and J. M. Cheney, for plaintiff in error. Jones & Jones, for defendant in error. MAXWELL, C. In April, 1895, sult was instituted by the defendant in error (plaintiff below) against the plaintiff in error to recover upon an insurance policy for loss by fire. Declaration was filed, containing one special count, based upon the policy of insurance, and several of the common counts. The defendant demurred to the first count of the declaration, and filed a plea to the common counts. The plaintiff thereupon filed an amended declaration, to which the defendant demurred, and on October 23, 1895, the plaintiff, without obtaining leave, but acting under rule 30, common-law rules for the circuit court, filed in the clerk's of fice a second amended declaration. On the rule day in December following, a default was entered by the clerk against the defendant for failure to plead to the second amended declaration, and on February 8, 1896, he entered final judgment for the plaintiff for $750 and interest upon the cause of action declared on in the second amended declaration. On May 4, 1896, the plaintiff filed what is stated as "Notice of Filing Amended Declaration," as follows: "Orlando, Fla., Oct. 19th, 1895. Mess. A. W. Cockrell & Son, Jacksonville, Fla.-Dear Sirs: Your letter of 18th inst. received. We found it necessary to amend our pleadings, and herewith inclose you a copy of amended declaration in Smith-Tyler vs. Southern Insurance Company. Thanking you for all courtesies, we remain, yours very truly, Jones & Jones." August 1, 1896, the defendant sued out writ of error to this court, and one of the errors assigned is that the clerk had no authority to enter a default on December 2, 1895. The default entered by the clerk was for failure on the part of the defendant to plead to an amended declaration filed by plaintiff, demurrer to the previous declaration being confessed. In order that the defendant should be required to plead to such declaration, he must have notice thereof. Rule 30, supra. Without such notice, he would be under no obligation to plead, and a default entered against him for failure to do so would be unauthorized and illegal. Haight v. Schuck, 6 Kan. 192; Elder v. Spinks, 53 Cal. 293. In order that the clerk should enter a valid default judgment against a defendant, it must appear from the record that his act was authorized. "The clerk's entry must be sustained by affirmative record evidence of every essential fact, even the proof upon which he entered the judgment. Snell v. Irvine, 17 Fla. 234; Coons v. Harllee, Id. 484; Blount v. Gallaher, 22 Fla. 92." Columbia Co. v. Branch, 31 Fla. 62 (text, 71) 12 South. 650. The only thing in the record before us tending to show that the defendant had received any notice of the filing by plaintiff of the amended declaration of October 23, 1895, is what purports to be a copy of a letter from plaintiff's counsel to defendant's counsel dated October 19, 1895, already referred to, stating that they inclosed copy of such amended declaration. This was filed in May, 1896, nearly three months after the final judgment entered by the clerk, but is indorsed as filed "by consent of counsel as of Oct. 19th, 1895. Nunc pro tunc. Jones & Jones, Attys. for Pl." Assuming that it was duly filed and properly before us, there is nothing to show that the original was ever forwarded by plaintiff's counsel to defendant's counsel, nor that it contained the inclosure stated, nor that either letter or inclosure ever reached defendant's counsel. It therefore clearly appears that in this case no service of any sort is shown. The entry of default and of final judgment thereon by the clerk were without authority, and clearly erroneous. The final judgment should be reversed, the default set aside, and the cause remanded for further proceedings according to law. GLEN and HOCKER, CC., concurred. PER CURIAM. The foregoing opinion has been examined by the court, and is hereby approved and adopted, and ordered to be filed as the opinion of the court in said cause. BRONK v. STATE. (Supreme Court of Florida. July 13, 1901.) HABEAS CORPUS-NOT AN APPELLATE PROCEEDING WHAT JUDGMENTS INQUIRED INTO -NE EXEAT-ALIMONY NOT A DEBT FOR WHICH IMPRISONMENT FORBIDDEN. 1. Neither error nor the regularity of judicial proceedings can be reviewed on habeas corpus, whether it be some informality of procedure before trial, error in the sentence itself, or some irregularity subsequent to sentence. If the record shows that the judgment, order, or process under which the party is held is not merely erroneous, but such as could not under any circumstances, or upon any state of facts, have been pronounced or awarded by the court ordering or issuing it, then the party is entitled to discharge. But if the judgment is merely erroneous, the court having given a wrong judgment when it had jurisdiction,-the party aggrieved can only have relief by writ of error or other process of review. He cannot be relieved summarily by habeas corpus. The failure of the judge to exact a bond from the complainant to the defendant before issuing a writ of ne exeat as provided for by section 1474, Rev. St., can be reviewed only in a direct proceeding on appeal, and cannot be inquired into collaterally by habeas corpus. 2. The judgment of a court, made within its jurisdiction, that involved the adjudication of jurisdictional facts, cannot be attacked collaterally on habeas corpus. 3. Under our system of jurisprudence, where our courts of equity are clothed with plenary jurisdiction over the entire subject of granting divorces, and maintenance and alimony to wives, either with or without divorce, and also with power to issue the writ of ne exeat for the enforcement of their decrees in such cases, such writ of ne exeat may be issued by our equity courts in suits for maintenance, before a decree is rendered fixing an amount to be paid, in all cases where it seems just to the chancellor to issue it, and a necessity therefor exists. 4. Alimony or maintenance from the husband to the wife is not a debt, within the meaning of the constitutional inhibition against imprisonment for debt. 5. On a writ of error taken by a husband to review the judgment of the circuit court in a habeas corpus proceeding instituted by him for the purpose of securing his discharge from imprisonment under a writ of ne exeat issued in a suit against him by his wife for maintenance, the wife has no such standing before the appellate court as will entitle her to ask at its hands counsel fees or alimony pending such writ of error in the habeas corpus proceeding. (Syllabus by the Court.) Error to circuit court, Volusia county; Minor S. Jones, Judge. Application for a writ of habeas corpus by John Parker Bronk. From an order dismissAffirming the writ, petitioner brings error. ed. Isaac A. Stewart (Egford Bly, on the brief), for plaintiff in error. F. W. Marsh, Jas. D. Beggs, and Geo. B. Perkins, for the State. TAYLOR, C. J. John Parker Bronk, the plaintiff in error, filed his petition on the 3d day of May, 1901, in this, the supreme court, for a writ of habeas corpus, addressed to the chief justice, who ordered the issuance of the writ, making the same returnable, as is almost invariably the custom of this court in such cases, before the judge in whose jurisdiction the detention was had. Section 1771, Rev. St. The petition for the writ was substantially as follows: "Your petitioner, John Parker Bronk, respectfully represents that he is imprisoned and detained in custody without lawful authority, and illegally restrained of his liberty, by J. R. Turner, the sheriff of Volusia county, Florida, at De Land, in said county, by virtue of an order of Hon. Minor S. Jones, judge of the circuit court of the Seventh judicial circuit of the state of Florida, in and for said county of Volusia, issued under the following circumstances: On the 19th day of April, 1901, one Lillie L. P. Bronk, claiming to be the wife of your petitioner, filed her bill of complaint in the circuit court of said county of Volusia, in chancery, against petitioner and his son Frederick Bronk, praying for alimony against your petitioner, and the cancellation of certain alleged conveyances from petitioner to said Frederick Bronk; that thereupon, on the 20th day of April, A. D. 1901, without any bond being required of complainant, and without any alimony having been decreed against petitioner, your petitioner was taken in custody by said J. R. Turner under a writ of ne exeat issued in said cause, requiring petitioner to procure bail in the sum of ten thousand dollars that he would not go beyond this state without leave of court, and that he would abide by and comply with all lawful orders and decrees of said court, and that, in case your petitioner should refuse to give such bail, your petitioner should be forthwith brought in custody of said sheriff before said judge at Titusville for further proceedings in the premises, until he shall do it of his own accord (copy of said writ is hereto attached, and made part of this petition); that your petitioner was unable to give bail as required by said writ, and was thereupon held in custody and deprived of his liberty by said J. R. Turner, sheriff as aforesaid; that on the 25th day of April, A. D. 1901, petitioner moved before Hon. Minor S. Jones, judge as aforesaid, that said writ of ne exeat be quashed and vacated; that said judge denied said motion, and ordered your petitioner to be held in custody and detained of his liberty and imprisoned in the common jail of Volusia county unless and until your petitioner should give bond in the suin of $10,000 that he will not depart without the state of Florida without the leave of the court, and abide by and conform to all lawful orders and decrees made in said cause, and pay the alimony and other sums decreed by said court to be due, or upon appeal by the appellate court. A copy of said order is hereto attached, and made part of this petition. And your petitioner says that said detention, confinement, and restraint is unlawful, for the following reasons: (1) Because said writ of ne exeat was issued without bond from complainant to petitioner as required by law; that the court was without jurisdiction to issue said order without bond, and the same was and is illegal and void. (2) Because in alimony proceedings the court has no jurisdiction to issue writ of ne exeat until alimony has been decreed, and, no alimony having been decreed against petitioner, the said order was and is illegal and void. (3) Because said order is in excess of the jurisdiction of the court, and is illegal and void. (4) Because at the time of the filing of the bill of complaint neither the complainant nor either of the defendants were, and are not now, residents of the state of Florida, and none of the property mentioned in said bill has ever been within the limits of this state, and the court has no jurisdiction to decree alimony in said cause, or to issue the writ of ne exeat, and the said writ and order were and are illegal and void. Wherefore your petitioner prays that a writ of habeas corpus may be granted and issued, directed to said J. R. Turner, sheriff as aforesaid, commanding him to bring and produce before this honorable court, at the place and time in said writ specified, the body of said John Parker Bronk, together with the cause of his detention, and that said John Parker Bronk, your petitioner, may be restored his personal liberty." Attached as exhibits to said petition for the writ of habeas corpus were copies of the two following documents: "In the Circuit Court of Volusia County, State of Florida. In the Name of the State of Florida: To All and Singular the Sheriffs of the State of Florida: Whereas, it is represented to said honorable court, sitting in chancery, on the part of Lillie L. P. Bronk, complainant, against John Parker Bronk, and other defendants, among other things, that he, the said John Parker Bronk, defendant, is greatly indebted to the said complainant on account of alimony and other causes, and designs quickly to go into parts without this state, as by oath made on that behalf appears, which tends to the great prejudice and damage of the said complainant, therefore, in order to prevent this injustice, we hereby command you, that you do, without delay, cause the said John Parker Bronk personally to come before you and give sufficient bail or security in the sum of ten thousand dollars, to be approved by the clerk, that the said John Parker Bronk will not go, nor attempt to go, into parts beyond this state without leave of our said court, and that he will abide by and comply with all lawful orders and decrees of our said court; and, in case the said John Parker Bronk shall refuse to give such bail or security, then you are to bring him, the said John Parker Bronk, in custody before me, at Titusville, in said district, forth with, for further proceeding in the premises until he shall do it of his own accord; and when you have taken such security you are forthwith to make and return a certificate thereof, together with this writ, to us, in our said court of chancery, distinctly and plainly, under your hand. Witness the Honorable Minor S. Jones, judge of the circuit court in and for the county of Volusia, in the Seventh judicial circuit of the state of Florida, and the seal of said court, this twentieth day of April, A. D. 1901. Sam'l D. Jordan, Clerk of the Circuit Court, Volusia County, Florida. [Seal.] "In the Circuit Court of Volusia County, State of Florida. Lillie L. P. Bronk vs. J. P. Bronk et al. The defendant John Parker Bronk being brought before me, in chambers, at Titusville, this day, under the writ of ne exeat issued in compliance with the order of this court made on the 19th day of April, A. D. 1901, for further proceedings in the said cause, and it appearing that the defendant is in custody, not having given bond as required by said order and writ, and, appearing by his solicitors, filed his motion to quash the said writ on the several grounds therein set forth. And the said cause having come on for hearing on the said motion to quash before me on this day, and the same having been argued by the respective counsel in the cause, and considered by the court, it is now ordered and decreed that the said motion be, and the same is hereby, denied, and the said defendant John Parker Bronk is hereby remanded to the custody of the said sheriff of Volusia county, Florida, in whose county the said writ was served, and he is hereby commanded to restrain him, the same John Parker Bronk, from going without the state of Florida without leave of this court, unless he give bond, with security, in the usual form, in the penal sum of $10,000, to be approved by the clerk of the said court, conditioned that he will not depart without the state of Florida without the leave of this court, and abide by and conform to all lawful orders and decrees made in said cause, and pay the alimony and other sums decreed by said court to be due, or upon appeal by the appellate court, and in default thereof then to commit him, the said John Parker Bronk, to the common jail of Volusia county, to be dealt with according to law. Done and ordered at chambers at Titusville this 25th day of April, A. D. 1901. Minor S. Jones, Judge." In response to the writ of habeas corpus, the sheriff made return alleging as the cause of the detention the said orders and writ of ne exeat, and attached as part of his return to said writ a copy of the entire record in the suit in which such order of ne exeat was issued. At the hearing on the writ of habeas corpus, the circuit judge refused to discharge the petitioner, but remanded him to the custody of the sheriff, to be held in ac cordance with the writ of ne exeat thereto fore granted, and under the terms therein mentioned, and adjudged the petitioner to pay the costs of such habeas corpus proceeding. From this judgment the petitioner sued out this writ of error to this court. There are nine assignments of error. The first seven of these relate wholly to admissions and rejections of evidence on the hearing of the habeas corpus. As we deem all of this questioned evidence wholly irrelevant and immaterial to the issues properly before the court on the habeas corpus proceeding, it becomes unnecessary for us to pass upon them, since they could not affect the conclusions at which we have arrived, no matter what might be our ruling thereon. The eighth and ninth assignments of error question the correctness of the court's ruling refusing to discharge the plaintiff in error, and remanding him to custody. Before discussing the contentions made by counsel, it will be proper to announce the rule as to the extent to which a court can go behind the judgment or process of another court of general jurisdiction on habeas corpus. Church, in his work on Habeas Corpus (section 348), says: "Void and voidable judgments may alike be reversed on appeal or writ of error, but the former only gives authority to discharge on habeas corpus, which writ cannot have the operation of an appeal, writ of error, or certiorari, or have the force or effect of those proceedings. Illegality can be affirmed only of radical defects, and signifies that which is contrary to the principles of law, as distinguished from rules of procedure. Illegality denotes a complete defect in the proceedings. * * Neither error nor the regularity of judicial proceedings can be reviewed on habeas corpus, whether it be some informality of procedure before trial, error in the sentence itself, or some irregularity subsequent to sentence." "An irregularity may be defined to be the want of adherence to some prescribed rule or mode of proceeding, and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner." 1 Tidd, Prac. 512. "If the record shows that the judgment, order, or process under which the party is held is not merely erroneous, but such as could not under any circumstances, or upon any state of facts, have been pronounced or awarded by the court ordering or issuing it, then the party is entitled to discharge. But if the judgment is merely erroneous,-the court having given a wrong judgment when it had jurisdiction, the party aggrieved can only have relief by writ of error or other process of review. He cannot be relieved summarily by habeas corpus." Judge Freeman's notes to Com. v. Lecky, 26 Am. Dec. 37, and numerous leading cases there cited. These general rules have been settled here as well as elsewhere. Ex parte Sam, 51 Ala. 34; Ex parte Scwartz, 2 Tex. App. 74; Ex parte Winston, 9 Nev. 71; Ex parte McGill, 6 Tex. App. 498; Ex parte Bowen, 25 Fla. 214, 6 South. 65; Ex parte Prince, 27 Fla. 196, 9 South. 659, 26 Am. St. Rep. 67; Ex parte Pitts, 35 Fla. 149, 17 South. 76; Ex parte Senior, 37 Fla. 1, 19 South. 652, 32 L. R. A. 133; Randall v. Tillis, 43 Fla. - 29 South. 540; Ex parte Gilchrist, 4 McCord, 233. Sections 1477 to 1489, both inclusive, of the Revised Statutes, give to our courts of chancery plenary jurisdiction over the entire subject of granting divorces, awarding alimony and maintenance to wives, and the custody of children, in such cases. The first contention of the plaintiff in error is that the bill for alimony by Lillie L. P. Bronk against John P. Bronk, in which the writ of ne exeat was granted, contains no allegation as to the residence of said complainant, and that, according to the proofs on the hearing of the habeas corpus, it was shown that neither the complainant nor defendant in said bill for alimony were bona fide residents or citizens of this state, and that in such case the courts of this state, as held in Miller v. Miller, 33 Fla. 453, 15 South. 222, 24 L. R. A. 137, were without jurisdiction to entertain such suit. The bill for alimony mentioned expressly alleges that the defendant John P. Bronk was a resident and citizen of Florida, and had been such for five years, which allegation, if proven to be true, would authorize our courts of chancery, upon a proper case made, to award alimony to the wife, regardless of her place of residence, as was held in the case of Miller v. Miller, supra. The fact as to whether John P. Bronk was such a bona fide resident of Florida as to give our courts of chancery jurisdiction over him to enforce against him the marital duty of maintaining and supporting his wife is and was one of the issues in the proceeding pending for alimony, which issue the court of chancery in which that proceeding is pending has full and general jurisdiction to pass upon and adjudicate in that proceeding; and its adjudication of it, though only in limine, and subject upon further investigation by it in the same proceeding to be differently adjudged, cannot be collaterally enquired into or reviewed on habeas corpus. In the case of Epping v. Robinson, 21 Fla. 36, it was held, in effect, that the judgment of a court, made within its jurisdiction, that involved the adjudication of jurisdictional facts, could not be attacked collaterally. The granting of the order of ne exeat on the bill for alimony filed necessarily involved an adjudication in limine of the jurisdictional fact as to whether either of the parties to that bill were such residents of this state as to authorize that court to deal with the question of alimony between them, and its decision of that question, though it may be erroneous, cannot be reviewed or interfered with on habeas corpus, but, if erroneous, can be reversed only on appeal. There is nothing in the case of Ex parte Harfourd, 16 Fla. 283, that is inconsistent with this view. The latter case was where a committing magistrate bound a party over to keep the peace. On habeas corpus from the circuit court, it was held that, as the circuit judges are invested here with the authority of committing magistrates, they could, on habeas corpus, in such cases, inquire into the cause of the imprisonment on the proofs upon which the committing magistrate acted, or upon further proofs taken in the habeas corpus proceeding, and thereon to discharge, admit to bail, or remand to custody as the law and the evidence shall require. The writ of habeas corpus is more far-reaching in this class of cases, for the reason that committing magistrates are courts of inferior and limited jurisdiction, and that no appeal or writ of error lies from their commitments. It is next contended that the circuit court had no jurisdiction to grant the writ of ne exeat in the case before it, because the bill is not predicated upon the existence of any ground of divorce mentioned in sections 1484, 1485, Rev. St., and that by section 1487 ne exeat can only be issued where there is a decree for alimony under the two firstmentioned sections, and, further, that the writ cannot issue before a decree for alimony has been rendered. As all this contention under the habeas corpus proceedings is in the nature of a collateral attack upon the order of a court of general jurisdiction, we are not at liberty, under the rule already stated, to go further into the inquiry than to see if the court was acting within the limits of its jurisdictional powers. Under an allegation, however, that the court acted without jurisdiction, we should go far enough to see whether in reality this be true, and also whether or not the action of the court is illegal, to the extent of rendering its decision entirely void, and not merely irregular. The bill in this case is for maintenance under section 1486, Rev. St.; and if it be conceded that there is no authority for a writ of ne exeat under it, derived from the authority given for the writ under section 1487, referring in specific terms to alimony under sections 1484 and 1485, it does not follow that the writ cannot issue at all. Section 1487 does not deny the use of the writ in applications under section 1486; nor is it restrictive, in our judgment, of the writ, to cases arising solely under sections 1484 and 1485. The maintenance section (1486) declares it to be the duty of husbands, having ability, to maintain their wives and minor children; and, when there is a failure to do so, a wife, whether living with her husband, or separate from him by his fault, may go into a court of chancery by bill for the enforcement of this duty. This right of the wife is an equitable demand for maintenance, in the nature of allmony, arising out of the duties incident to |