Friedman v. Rehm

• Decision Date: 26 November 1901
• Citation: 43 Fla. 330,31 So. 234
• Parties: FRIEDMAN et al. v. REHM et al.
• Court: Florida Supreme Court

31 So. 234

43 Fla. 330

FRIEDMAN et al. v. REHM et al.

Florida Supreme Court

November 26, 1901

Appeal from circuit court, St. Johns county; Rhydon M. Call, Judge.

Bill by Joseph L. Friedman and John W. Keiler, partners as Friedman Keiler & Co., against Herman Rehm and R. W. Simms. Decree for defendants, and complainants appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. A final decree rendered in pursuance of a previous decree pro confesso may be set aside after the lapse of the period of 20 days from its entry, whereby it has become absolute under section 1446 of the Revised Statutes; but an application to set aside such a final decree after the expiration of 20 days from its entry should never be entertained from a mere desire to let in a defense on the merits, but only where strong and unavoidable circumstances exist excusing failure to answer at the proper time.

2. To authorize the granting of an application to set aside a final decree, which has become absolute under section 1446 of the Revised Statutes, for the purpose of permitting a defense to be interposed, it must be shown that there was deceit surprise, or irregularity in obtaining the decree, that the defendant acted bona fide and with reasonable diligence, that he has a meritorious defense, and that strong and unavoidable circumstances exist excusing the failure to answer at the proper time.

3. Affidavits sworn to by defendants and filed in resistance of a preliminary application for the appointment of a receiver and neither purporting to be nor intended as formal answers to a bill of complaint, will not be regarded as answers so as to preclude the entry of a decree pro confesso if answers are not seasonably filed.

4. Neither mutual mistake of associate counsel as to the one charged with the duty of preparing and filing answers, nor the erroneous supposition that affidavits filed in resistance of an application for the appointment of a receiver would preclude the entry of a decree pro confesso, nor the fact that counsel for defendants supposed no action would be taken until the court passed upon such application for appointment of a receiver, constitute circumstances authorizing the setting aside of a final decree absolute under the statute.

5. A decree setting aside a final decree, which has become absolute under the statute, for the purpose of permitting a defense to be interposed, will be reversed on appeal where it is not shown that such circumstances existed as to authorize the action of the court in setting aside the decree, and the action of the court in that regard is assigned as error.

COUNSEL

W. W. Dewhurst, for appellants.

John E. Hartridge, for appellees. On June 4, 1895, appellants Joseph L. Friedman and John W. Keiler, partners as Friedman, Keiler & Co., filed their bill of complaint in the circuit court of St. Johns county against appellees, Herman Rehm and Robert W. Simms, alleging that appellants recovered a judgment in said court on May 13, 1895, against Rehm for $212 damages and $4 costs, and on the same day another judgment against Rehm and one Sullius, a former copartner of Rehm, for $135.35 damages and $3 costs. The bill alleged that the judgments remained unpaid; that executions were issued thereon on May 15, 1895, upon which the sheriff of said county made return on May 24, 1895, that there was no property, real or personal, of either of said parties upon which to make a levy.

It was alleged in the bill that on and prior to November 21, 1894 Rehm was engaged in the business of selling liquors and the proprietor of a saloon in St. Augustine; that he was then indebted to the Joseph Schlitz Brewery Company, or to its agent at Jacksonville, in the sum of $1,200, payable in installments of $100 each month on and after January 15, 1895; that he was then indebted to complainants in the sum of $964.38, represented by five drafts drawn by them, and accepted by him, due, respectively, February 10, March 10, April 10, May 10, and June 10, 1895; and the bill alleged on information and belief that on or about February 27, 1895, Rehm was also indebted to the Anheuser-Busch Brewing Company in a large sum of money, the amount of which was unknown to complainants.

The bill further alleged that on or about February 27, 1895, Rehm, with intent to defraud complainants, made a colorable and feigned sale and transfer of all his property subject to execution, and executed and delivered to Simms a bill of sale of the 'liquor, bar, restaurant, and hotel business, including state and county license, of the said Herman Rehm, and the 'good will' of the said business'; and that on the same day the said defendant caused the pretended bill of sale to be recorded in the office of the clerk of the circuit court of St. Johns county. A copy of the bill of sale was attached to the bill as an exhibit thereto, and made a part thereof. It purported to be made for an expressed consideration of $1,854, and undertook to convey, in addition, certain fixtures, stock, chattels, and personal property particularly described in a schedule thereto annexed, consisting of certain furniture and property usual to a saloon, and some liquors and wines. The bill then alleged that the property described in the bill of sale was all the property of Rehm subject to execution in the state of Florida; that the sale was made without consideration, for the purpose of placing the property beyond the reach of Rehm's creditors; that there was no transfer of possession, and that Rehm continued in control of the property up to the time of filing the bill, claiming to be the agent and employé of Simms.

The bill contained various other allegations in regard to the alleged fraudulent character of the sale, prayed that Rehm might be decreed to pay complainants their judgment debts, with interest and costs, and that the property described in the bill of sale might be declared subject to the executions issued thereon. There was a further prayer that Simms might be enjoined from selling, disposing of, or in any way incumbering the property, and for the appointment of a receiver to take possession thereof.

The defendants appeared, and each in July, 1895, filed an affidavit in resistance of the application for appointment of a receiver, but neither filed an answer to the bill by the rule day in August, 1895, whereupon complainants' solicitor filed a praecipe for a decree pro confesso against them.

On August 17, 1895, complainants brought the cause on for final hearing, and the court rendered a decree on that day reciting that a decree pro confesso had been regularly entered against the defendants, and decreeing that complainants had a lien upon the property included in the bill of sale 'to the amount of the two judgments described in the bill of complaint,' with interest, that the said property was...