Knight, resigned, which term, according to the recitals in the commission and the allegations of some of the pleas, expired April 27, 1901. Each of the pleas of respondent, except the first, alleges that on April 27, 1901, respondent was duly appointed to said office, and confirmed by the senate, for four years from said date, and his commission reciting these facts is referred to, and attached as an exhibit to some of the pleas. There is no denial in any of the pleas that the facts recited in Turman's commission are true, and in determining the propriety of the ruling on the demurrer to the pleas (except the first) we must consider as true the facts recited in Turman's commission, as well as the facts alleged in the pleas and shown by the exhibits. Relator, under the demurrer to the pleas, contends that, although his appointment, confirmation, and commission purports to be limited to the unexpired term of Peter O. Knight, resigned, to wit, until April 27, 1901, yet that under the constitution he is entitled to hold the office for four years from the date of his commission, viz., until June 8, 1903, and that consequently the appointment of respondent on April 27, 1901, was void, and conferred no right to the office on him. To this contention we will now address ourselves. Before quoting the provisions of the present constitution bearing upon the subject, it may be well to refer to certain provisions in the constitution of 1868, and the construction placed by this court thereon. Section 7, art. 7, of that constitution provided that "there shall be seven circuit judges appointed by the governor and confirmed by the senate, who shall hold their office for eight years." Section 7, art. 6, provided that. “When any office from any cause shall become vacant, and no mode is provided by this constitution or by the laws of the state for filling such vacancy, the governor shall have the power to fill such vacancy by granting a commission which shall expire at the next election." In Re Tenure of Office of Circuit Judges (Executive Communication of January 19, 1877) 16 Fla. 841, the court, in answer to the questions whether, under that constitution and the laws, a judge of the circuit court, appointed by the governor and confirmed by the senate, held his office for eight years in a case where there had been a previous incumbent, who, while appointed for eight years, had filled the office only for a part of that time, and whether in such case the second incumbent, appointed and confirmed in conformity to constitutional authority before the expiration of the time for which a previous incumbent had been appointed, held his office for the full time of eight years, or for the balance of the unexpired time for which the first incumbent was to hold, said: "The language of the constitution is plain and simple: There shall be seven circuit judges appointed by the governor and confirmed by the senate, who shall

hold their office for eight years.' There is nothing in this which limits the time of service of one appointee by reference to the time served by a previous one. The plain literal construction of that section is that, whenever the two acts-appointment by the governor and confirmation by the senate-unite, the result is the party is entitled to the office, and the express declaration is that he shall hold the office for eight years. Unless, therefore, there is some other provision of the constitution limiting or otherwise explaining this language, it must have its usual and ordinary effect. There is nothing here establishing a term of office to exist between fixed dates of months or years, nor is there anything having the most remote reference to an unexpired term, or to a vacancy in an office as distinct from the office itself. There is no other provision of the constitution which changes or affects this section. The only general clause of the constitution referring to vacancies in office is that found in section 7, art. 6; and this court has heretofore held (State v. Gamble, 13 Fla. 12) that the power there granted is not a power to fill an unexpired term, but to fill a special vacancy, embraced in the period between the time at which the office is made vacant and the filling of the office by an election. This section, too, relates exclusively to vacancies in elective offices." The conclusion reached was that a judge of a circuit court, appointed by the governor and confirmed by the senate, held his office for eight full years, and that no part of a previous eight years during which another had held the office (but who had vacated it) entered into the computation of time for which the second appointee held. The office of county solicitor was first created or recognized in this state by the constitution of 1885, but it is contended that the same construction should be applied to the language of that constitution relating to his office as was applied to the language of the constitution of 1868 relating to the office of circuit judge. If so, it is clear that relator, when appointed by the governor and confirmed by the senate in 1899, was rightfully entitled to hold the office for four years, and that the subsequent appointment of respondent in 1901, before the expiration of that period, was unauthorized and void.

The office of county solicitor is provided for by section 27. art. 5, Const. 1885, as follows: "There shall be for each of said courts a prosecuting attorney, who shall be appointed by the governor and confirmed by the senate, and who shall hold his office for four years." This language is very similar to that employed in the constitution of 1868 with reference to the circuit judges, and almost identical with that employed in the constitution of 1885 with reference to circuit and criminal court judges, viz.: "There shall be seven circuit judges, who shall be appointed by the governor and confirmed by the senate and who

shall hold their office for six years." Section 8, art. 5. "There shall be one judge for each of said courts, who shall be appointed by the governor and confirmed by the senate, who shall hold his office for four years." Section 24, art. 5. And yet we know to a certainty that this language with reference to circuit and criminal court judges was not intended to bear the same construction as similar language with reference to circuit judges in the constitution of 1868, because it is expressly provided by section 33, art. 5, that, "When the office of any judge shall become vacant from any cause, the successor to fill such vacancy shall be appointed or elected only for the unexpired term of the judge whose death, resignation, retirement or other cause created such vacancy," thereby distinctly recognizing unexpired terms in the offices of such judges, and confining their successors to fill vacancies to the unexpired term. It must be admitted, however, that section 33 has no reference to county solicitors, and, if there is no other provision in the constitution limiting or explaining the language used in section 27 with reference to such officer, the same construction must be applied to this language as was given to that used with reference to circuit judges in the constitution of 1868. Turning now to section 7, art. 4, Const. 1885, we find that it is a revision of section 7, art. 6, Const. 1868, and the change of language is significant. "When any office, from any cause, shall become vacant, and no mode is provided by this constitution or by the laws of the state for filling such vacancy, the governor shall have the power to fill such vacancy by granting a commission for the unexpired term." As it now reads, it is applicable to appointive as well as elective officers, and it recognizes and provides for filling unexpired terms (see State v. Murphy, 32 Fla. 138, 164, 13 South. 705); while the original section, before revision, applied only to elective offices, had no application to unexpired terms, and provided only for filling a special or limited vacancy by providing an incumbent for that period of time existing between the happening of the vacancy and the next election. State v. Gamble, 13 Fla. 9; State v. Day, 14 Fla. 9; Opinion of Justices (Execu tive Communication) 14 Fla. 277; In re Tenure of Office of Circuit Judges (Executive Communication) 16 Fla. 811. The original section had reference to a mere locum tenens for a part of a vacancy in elective offices; nothing more. The revised section deals with vacancies in office generally. Its language is broad enough to include that of county solicitor, and the vacancy recognized and provided for is the entire period, beginning with the happening of the event which leaves the office without an incumbent and ending with the expiration of the term of the former incumbent. It has no reference to filling the office for a new term or for the constitutional period, but for the unexpired term only; and there can be no difficulty

whatever in applying it to the office of county solicitor, who holds for a fixed period, to wit, four years, even though in the section creating the office, terms of office, in contradistinction to terms of the officer, have not been prescribed in technical language. Neither circuit nor criminal court judges are, in technical language, declared to hold terms of office as distinguished from terms of the officer, and there would be as much reason for holding that the words "any judge," used in section 33, art. 5, should not be applied to circuit and criminal court judges for this reason, but rather should be restrained to supreme and county judges and justices of the peace, who are the only judges given fixed terms of office by the constitution, as to say that the words "any office," used in section 7, art. 4, were not intended to embrace county solicitors. Such a construction as to circuit and criminal court judges could be reached by arguing that, as section 33 does not in terms purport to create terms of office for them, and the language of the sections relating to them being insufficient to create terms of office, the expression "any judge" must be construed to refer to those judges for whom terms of office are expressly created, viz., supreme and county judges and justices of the peace; but such a construction would be based upon narrow and technical grounds, and would be manifestly contrary to the obvious meaning of the constitution, which plainly intends that successors to fill vacancies in the offices of all judges shall hold for the balance of the time that the predecessor in office might have held under his original appointment or election. Neither section 33, art. 5, nor sectica 7, art. 4, purport to create terms of office, but they do recognize unexpired terms in office. They each relate to vacancies in office, and to the filling of such vacancies for the unexpired term. They have no reference to the regular expiration of terms, nor to filling offices for new or full terms, but are limitations upon the power to fill the office for a new or full term upon the happening of a vacancy, which power would exist in the absence of such provisions, or of other provisions creating technical terms of office. The construction given to the provisions of the former constitution in the executive communication before referred to is obviously correct, but it cannot be doubted that the change of language in the seventh section of the executive article was made with special reference to unexpired terms, and, when this revised section is read in connnection with the executive communication, it is apparent that the change was made designedly with a view of removing the objections advanced in that communication against holding that the provision, as it then stood, imported the element of an unexpired term into the office of circuit judge. That this change of language means something cannot be denied, and, in view of the con struction placed upon the original section in

connection with offices held for a fixed time, but not having technical terms of office af fixed to them, the conclusion seems irresistible that it was intended by this amendment to recognize the element of an unexpired term in all offices created by the constitution where a fixed definite period of holding was allotted to the incumbent, whether called technically "terms of office" or "terms of the officer." That the general spirit of the constitution is to recognize this element of an unexpired term in all offices created thereby where a definite time of holding is prescribed, is made manifest by the provision of section 33, art. 5, with regard to unexpired terms of judges, and by sections 6, 7, art. 18, which provide: "The term of office for all appointees to fill vacancies in any of the elective offices under this constitution shall extend only to the election and qualification of a successor at the ensuing general election." "In all cases of elections to fill vacancies in office, such election shall be for the unexpired term." When it is remembered that these provisions include every appointive and elective officer, holding for a fixed period of time, mentioned in the constitution, except county commissioners (who, however, were clearly given terms of office by other provisions), and state attorneys and county solicitors, and they include some elective officers who hold for only two years, and whose successors in cases of vacancies in the offices could not be elected until the month of November preceding the expiration of the term of office in January following, it will be perceived that there was a general purpose to secure uniformity in the period of the holding of successors to fill vacancies in every office having a fixed period of holding, either elective or appointive, confining such successor to the unexpired term or time of his predecessor. If it had been intended to except county solicitors from this general purpose, made more manifest by the change of language in section 7 of the executive article, it seems reasonable to suppose they would have been expressly excepted from its provisions; but nowhere in the constitution do we find any evidence of such an intention. Reading section 7 of article 4 in connection with section 27, art. 5, in the light of the decisions under the constitution of 1868, the change of language of section 7 to meet the objections urged in those decisions, and the general purpose manifested throughout the entire constitution, as revised, to import into offices held for fixed periods the element of unexpired terms in cases of vacancy, we must conclude that vacancies in the office of county solicitors happening before the expiration of the time, to wit, four years, fixed by the constitution as the period of holding, must be filled for the unexpired term, and not by a new appointment for a new or a full term. This construction gives effect to both sections, makes the term of appointees to till vacancies in such offices uniform with other

offices held for fixed periods, and gives effect to the manifest purpose of the constitution; while the opposite conclusion can be reached only by reasoning upon narrow and extremely technical grounds, and by holding that section 7 does not apply in any case to the office of county solicitor, because there can be no such vacancy in that office as is contemplated in that section. If that section does not apply to the office of county solicitor, then, if the senate is not in session when a vacancy in that office happens, and the legislature has not provided for a locum tenens until the next session of the senate, a constitutional office, indispensable to the business of a court required by section 26, art. 5, to hold six terms in each year, must remain vacant until the next session of the senate, which might not meet for nearly two years. It cannot be presumed that such a result was contemplated by the constitution, especially where it contains no provision requiring the legislature to pass laws upon the subject of vacancy in office. It ought rather to be inferred that section 7, art. 4, was inserted with special reference to vacancies in all offices not otherwise specially provided for, in order that the failure of the legislature to act might not operate so as to leave the important constitutional offices vacant, and to provide by that section for filling them. Under the construction we adopt, such a result cannot occur. The original power to fill an office includes the power to fill an unexpired term in that office; or, as the idea is expressed in State v. Gamble, 13 Fla. 9, 16, the power to fill the unexpired term is a part of the original power to appoint vested by section 27, art. 5, in the governor and senate. When a vacancy happens during a session of the senate, as was the case when the relator was appointed in 1899,-the vacancy for the unexpired term is properly filled by the governor and senate, under the original power, and not by the governor alone, under section 7, for the reason that a mode is otherwise provided by the constitution for filling the vacancy for the unexpired term, to wit, the original power granted by section 27, art. 5. If the vacancy happens when the senate is not in session, and there is no statute providing for a locum tenens until the senate meets again, the governor appoints for the unexpired term, under section 7, art. 4, because no other mode is provided for filling that vacancy by the constitution and laws. Under the present statute, however (section 217, Rev. St.), it would be the duty of the governor to appoint, and such appointee would hold until the end of the next ensuing session of the senate, unless an appointment should be sooner made and confirmed, or consented to by the senate,-Opinion of Justices (Executive Communication) 14 Fla. 277; and when the senate next met it would be the duty of the governor and senate to fill the office for the unexpired term, under the original power to appoint. With this statute in force, the gov

ernor could not grant a commission, under section 7, art. 4, for the unexpired term, for the reason that in such a case the statute and the constitution together would provide a mode of filling the vacancy for the unexpired term. The original power granted to the governor and senate by section 27, art. 5, is ample, not only to fill the office for new or full terms, but to fill vacancies occurring before the expiration of the term; but in the one case the duration of the appointment lasts for four years, while in the other its duration is limited to the expiration of the time for which the original incumbent might have held if no vacancy had occurred.

From what has been said it follows that the relator was properly appointed and confirmed as successor of Peter O. Knight, resigned, for the unexpired term, and not for four years, and that the appointment and confirmation of respondent at the expiration of that time was legal, and consequently that the demurrer to the second, third, fourth, fifth, and sixth pleas of respondent should have been overruled. Counsel have not specially argued the propriety of the ruling upon the demurrer to the first plea, and therefore we shall not express an opinion upon that question.

The judgment is reversed, and the cause remanded, with directions that the demurrer to the pleas numbered from 2 to 6 be overruled, and that such further proceedings be had as may be conformable to law.

DUDLEY et al. v. WHITE. (Supreme Court of Florida. Feb. 28, 1902.) JUDGMENT-ENTRY OF DEFAULT-MOTION TO DISMISS-SPECIAL APPEARANCE— OPENING DEFAULT.

1. The fact that the judge of a circuit court is the plaintiff, or for other reason disqualified in a cause pending in that court, in no manner affects the power of the clerk of the court to perform the ministerial act of entering defaults proper to be entered because of failure to plead within the time required by law, conferred on him by statute; and a default so entered in such a case by the clerk, tested in the name of the judge as well as his own, is valid. 2. If a motion to dismiss filed by the defendaut in an action at law within the time allowed by the statute for filing a plea or demurrer be of such a character that the plaintiff will be justified in treating it as a nullity, he may disregard it, and cause the clerk to enter a default for failure to plead or demur; but if the motion be not of that character, no default can be entered until the motion is disposed of. 3. An unverified motion to dismiss in behalf of both defendants in an action at law against two, one of whom has been duly served with process in the county where the suit is instituted, the grounds of such motion being that the court has no jurisdiction over the defendants therein, that the cause of action did not accrue in such county, that neither defendant resides in said county, that there is nothing local in the action that gives the court jurisdiction, filed on the return day of the summons, where there is nothing in the record tending to show that the last three grounds of the mo

tion are true, may be treated as a nullity by the plaintiff; and, if no plea or demurrer is filed on the next rule day after the filing of such motion, a default for want of plea or demurrer may be entered, notwithstanding such motion is then on file.

4. Where a defendant appears specially for the purpose of presenting the question of jurisdiction of the court over his person, he must restrict his motion to the ground of such jurisdiction, and must not include therein some other ground that recognizes the jurisdiction of the court over his person, and amounts to an appearance in the cause by him; and if he does so the motion will be held to be a general appearance, notwithstanding the fact that it purports to be made in pursuance of a special appearance.

5. A motion made in pursuance of a special appearance entered in a cause by a party not served, asking the dismissal of the cause upou the ground that the court has not acquired jurisdiction over his person, and also upon the ground of personal privilege to be sued in another county, recognizes the jurisdiction of the court over the person of the mover, and amounts to a general appearance on his part. 6. Under section 1034, Rev. St., motions to open defaults properly entered, in order to permit the party in default to plead, must be made within 60 days after the entry of the default, or at the next term of the court if one intervenes between the entry of the default and the expiration of said period of 60 days.

(Syllabus by the Court.)

Error to circuit court, Hamilton county; Rhydon M. Call, Judge.

Action by John F. White against F. J. Dudley and T. A. Jennings. Judgment for Afplaintiff, and defendants bring error.

firmed.

L. E. Roberson and J. N. Stripling, for plaintiffs in error. J. S. White, for defendant in error.

CARTER, J. This cause, being reached in its regular order for final hearing, was referred by the court to its commissioners, who report that the judgment from which the writ of error was taken ought to be affirmed. The court after due consideration reaches the same conclusion.

It appears that on December 2, 1896, defendant in error, by his attorneys, began an action of assumpsit in the circuit court of Hamilton county against plaintiffs in error, Dudley and Jennings, who were sued as late partners doing business under the firm name and style of F. J. Dudley & Co. Summons issued and was duly returned by the sheriff as having been personally served upon Jennings in Hamilton county. On the 2d day of January, 1897, plaintiff filed his declaration, declaring upon two promissory notes for $2.450 each. On the return day of the summons, January 4, 1897, defendants filed their special appearance in the cause, and moved to dismiss the suit upon four grounds, as follows: "(1) Because the court has no jurisdiction of defendants herein; (2) the cause of action did not accrue in Hamilton county; (3) neither one of said defendants resides in Hamilton county; (4) there is nothing local in the action that gives this court jurisdiction." On the next rule day, February 1,

1897, at the request of plaintiff's attorneys, the clerk entered a default against the defendants for want of plea, answer, or demurrer, reciting that plaintiff's declaration was filed on the rule day in January; that defendants entered an appearance in the cause on that day, and that they had failed to plead, answer, or demur to plaintiff's declaration on or before the rule day in February. The default was signed by the clerk, but tested in the name of the judge of the court as well as his own. On March 20, 1897, defendants, purporting to appear specially for that purpose, moved to vacate the default on five grounds, as follows: "(1) Defendants are sued as late partners, and the record shows that no service was ever perfected upon F. J. Dudley, and the service upon defendant T. A. Jennings, a late copartner, does not bind defendant Dudley; (2) a motion was pending to dismiss the suit, and plaintiff had no right to a default while said motion was pending; (3) plaintiff is the judge of said court, and the said judgment cannot be properly entered in his favor; (4) the default is not in accordance with the statutory requirements; (5) said default bears teste in the name of the judge who is plaintiff in said cause." On March 22, 1897, the judge of the Fourth circuit, acting pro hac vice, heard the motion to vacate the default, and denied same. On April 8, 1897, defendant Jennings moved to vacate the order denying the motion to vacate the default, and for leave to amend the motion by adding an additional ground, numbered 6, to the effect that defendants have a meritorious defense to plaintiff's cause of action, tendering with such motion a plea to the merits. On the same day the motion was heard by the judge of the Fourth circuit, acting pro hac vice, and denied. Thereafter, on June 30, 1897, final judgment upon the causes of action sued upon was entered by the clerk, and from this judgment the present writ of error is taken.

The assignments of error complain that the court erred in the following particulars: (1) Entering the default at February rules; (2) denying the motion to vacate the default; (3) denying the motion for leave to plead; (4) refusing to vacate the order denying the motion to vacate the default; (5) entering final judgment.

The facts as stated are taken from the amended abstract filed by plaintiffs in error, which has not been excepted to; and, while some of the motions recite the fact that affidavits were filed in support thereof, none of the affidavits appear in the abstract.

The fifth assignment of error is not argued, and must, therefore, be treated as abandoned. The other assignments are argued together, and under them the only questions presented in argument are that the default judgment is void because it bears teste in the name of the judge who was the plaintiff in the suit; that the clerk had no authority to enter the default pending the motion to dismiss; that

he had no authority to enter a default against Dudley, because he had not been served with process, and had not entered his appearance in the suit, and that the default should have been opened in order to permit defendant Jennings to plead.

I. The default was entered by the clerk in pursuance of the authority conferred on him by the statute which empowers him to enter defaults for failure to plead within the time required by law. It is true that the judge was disqualified from making any orders in the case, because he was the plaintiff therein, but the disqualification of a circuit judge in no manner affects the power of the clerk of the court under the statute to perform the ministerial act of entering defaults proper to be entered because of failure to plead within the time required by law (6 Am. & Eng. Enc. Law [2d Ed.] 145; People v. De Carrillo, 35 Cal. 37), and it follows, as a necessary consequence, that such defaults so entered by the clerk in pursuance of the statute, if necessary to be tested in the name of the judge, may be so tested, though the judge be disqualified, without affecting the validity of the default.

II. Section 1030, Rev. St., provides that the defendant shall file his plea or demurrer on the rule day succeeding that upon which the declaration is filed, unless, upon motion, further time be given by the court, and section 1032 provides that if the defendant shall fail to plead or demur at the time hereinbefore provided, or at the time fixed by the court upon motion, as herein before provided, the plaintiff may cause a default to be entered by the clerk against the defendant, and thereupon he may proceed to take final judgment, as herein before provided. In this case no plea or demurrer was filed within the time required by the statute above referred to, but it is contended that the filing of the motion to dismiss operated to suspend the power of the clerk to enter a default for failure to plead or demur until such motion was disposed of by the order of a qualified judge. We do not find that this court has ever decided whether a motion of this character, filed within the time allowed for pleading, suspends the power of the clerk to enter default for failure to plead. In chancery causes it has been held that a paper purporting to be a plea or demurrer, filed within the time allowed for pleading, which has not been certified by counsel or sworn to by the party, as required by the rules or statute, may be treated as a nullity, and that the complainant may, without any application to the court to strike such a paper, cause a decree pro confesso to be entered by the clerk as for failure to plead. Trower v. Bernard, 37 Fla. 226. 20 South. 211; Taylor v. Brown, 32 Fla. 334, 13 South. 957. In Huling v. Bank, 19 Fla. 695, it was held, in an action at law, that when a plea is not responsive to the declaration, or any part of it, it is frivolous, and may be treated as a nullity, and, without motion to strike out or demur, the plaintiff