Clarke v. Knight

• Decision Date: 23 November 1923
• Citation: 98 So. 358,86 Fla. 491
• Parties: CLARKE v. KNIGHT.
• Court: Florida Supreme Court

98 So. 358

86 Fla. 491

CLARKE v. KNIGHT.

Florida Supreme Court

November 23, 1923

Rehearing Denied Dec. 20, 1923.

Suit by Sarah L. Clarke, by Gustave A. Hanson, her next friend against Andrew J. Knight. From an order setting aside a decree pro confesso, plaintiff appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

When decree pro confesso will be reopened, stated. The rule is well settled that a decree pro confesso will not be set aside or reopened except on a showing of both reasonable diligence and a meritorious defense by the defendant.

Showing of meritorious defense held sufficient to authorize reopening of decree pro confesso. A motion to vacate and set aside a decree pro confesso filed one month after entry of said decree pro confesso, the said motion to vacate having attached thereto an answer which on its face presents a meritorious defense, is sufficient compliance with the rule that such motions make a showing of reasonable diligence and a meritorious defense.

Appeal from Circuit Court, Hillsborough County; F M. Robles, judge.

COUNSEL

Shackleford & Shackleford, of Tampa, for appellant.

Sparkman & Knight, of Tampa, for appellee.

OPINION

TERRELL J.

In a strong opinion by Mr. Justice Ellis, reported in (Fla.) 94 So. 671, will be found a complete statement of the facts in this case as presented by the pleadings.

The sole question presented on this appeal is whether or not the circuit court of Hillsborough county erred in and by its order dated March 14, 1923, setting aside and vacating the decree pro confesso entered herein, and permitting the defendant below to file his answer.

The rule is well settled that a decree pro confesso will not be set aside or reopened except on a showing of both reasonable diligence and a meritorious defense by the defendant. Strickland v. Jewell, 80 Fla. 221, 85 So. 670; Keil v. West, 21 Fla. 508; Myers v. McGahagan, 26 Fla. 303, 8 So. 447; Turner v. Jones, 67 Fla. 121, 64 So. 502; Prout v. Dade County Security Co., 55 Fla. 816, 47 So. 12; Friedman v. Rehm, 43 Fla. 330, 31 So. 234; 10 R. C. L. p. 540; French v. Hay, 22 Wall. (U. S.) 231, 22 L.Ed. 799.

Was the showing of reasonable diligence and a meritorious defense made by the defendant? The mandate of this court in Clarke v. Knight, 84 Fla. 468, 94 So. 665, directing that decree pro confesso against defendant A. J. Knight be entered without prejudice to his right to move to reopen the same for good cause shown, was filed with the clerk of the circuit court of Hillsborough county December 1, 1922. On the same date the said mandate was filed, complainant filed her motion for the entry of a decree pro confesso against the said defendant Andrew J. Knight, which motion was granted by the court and decree pro confesso entered on said last-named date. On the 1st day of January, 1923, defendant Andrew J. Knight filed his motion to vacate and set aside the decree pro confesso, which motion was granted March 14, 1923, and on March 14, 1923, appeal was taken from the order granting said motion.

It will therefore be seen that exactly one month after plaintiff's motion for entry of decree pro confesso defendant filed his motion to vacate and set aside the said decree pro confesso, which would seem to be an exercise of reasonable diligence on the part of defendant. Counsel for plaintiff contends that defendant was guilty of culpable negligence in that he failed or refused to plead answer, or demur to the bill of complaint on the rule day in June, 1921, as he was required by law to do;...