Johnson v. Johnson

• Decision Date: 12 February 1926
• Citation: 107 So. 342,91 Fla. 275
• Parties: JOHNSON v. JOHNSON et al. JOHNSON et al. v. JOHNSON.
• Court: Florida Supreme Court

107 So. 342

91 Fla. 275

JOHNSON v. JOHNSON et al.

JOHNSON et al. v. JOHNSON.

Florida Supreme Court, Division A.

February 12, 1926

Suit by Nellie Graham Johnson against Elizabeth Kimmell Johnson individually and as the widow and heir of Howard Van Rensselaer Johnson, deceased, and others, in which the named defendant and others filed a cross-bill. From an interlocutory order setting aside a decree pro confesso against the complainant in the original bill, the complainants in the cross-bill appeal, and the defendant in the cross-bill moves to dismiss the appeal.

Motion granted.

Syllabus by the Court

SYLLABUS

Interlocutory order remains within control of chancellor, at least until entry of final decree, in absence of intervening and effective appellate jurisdiction. An interlocutory order in an equity cause remains within the control of the chancellor at least until the entry of final decree, in the absence of intervening and effective appellate jurisdiction.

Order of chancellor on motion to set aside decree pro confesso is discretionary, and will not be disturbed on appeal, except on showing of gross abuse of discretion (Rev. Gen. St. 1920, §§ 3158, 3169). A motion to set aside a decree pro confesso is addressed to the sound discretion of the chancellor, and while under the statute (section 3169, Rev. Gen. Stats. 1920) an appeal lies from the order of the chancellor either granting or refusing such motion, his order thereon will not be disturbed or reversed by this court, unless gross abuse of such discretion is made to appear.

On motion to dismiss appeal from discretionary order, appellate court, without going into merits, may consider whether court below was clearly and palpably acting within scope of discretionary power. Where an appeal is taken from a discretionary order, this court may, on proper motion to dismiss the appeal, without going into the merits of the general case, consider the question as to whether the court below was clearly and palpably acting within the scope of its discretionary power, as bearing on the question of whether there has been any abuse of the right of appeal, or whether the appeal is frivolous.

On showing that decree pro confesso was improvidently or inadvertently granted, and setting it aside was proper appeal from interlocutory order vacating such decree will, on proper motion, be dismissed. Where, on an appeal from an interlocutory order vacating a decree pro confesso, it appears that such decree pro confesso was improvidently or inadvertently granted, or that the court was performing an obvious and manifest duty in setting the same aside, or was palpably within the proper exercise of its discretionary power, thus rendering the appeal from such vacating order frivolous, the said appeal will on proper motion be dismissed.

Motion lies to strike crossbill joining as parties complainant therein persons not made parties defendant in original bill complainant in a cross-bill persons who were complainant in a corss-bill persons who were not made parties defendant in the original bill, and, where this is done, a motion to strike the cross-bill will lie.

If complainant has seasonably filed motion to strike cross-bill, which motion is not frivolous on its face, decree pro confesso should not be rendered against complainant for failure to answer, plead, or demur to cross-bill (Rev. Gen. St. 1920, §§ 2619, 3121-3123, 3152). Where a motion to strike a cross-bill has been seasonably filed by the complainant in the original bill, and such motion is not frivolous on its face, and is pending undisposed of, a decree pro confesso should not be rendered against the complainant in the original bill, on the ground that she has failed to answer, plead, or demur to such cross-bill.

Decree pro confesso, rendered while meritorious motion to strike is pending undisposed of, should be set aside on motion or by court sua sponte, when brought to its attention (Rev. Gen. St. 1920, §§ 3121-3123). A motion to strike is a form of pleading which has long been recognized both at law and in equity, and is expressly recognized by the Chancery Practice Act of 1915, now appearing as sections 3121-3123 of the Rev. Gen. Stats. 1920, and, where a decree pro confesso is rendered while a meritorious motion to strike is pending undisposed of, such decree should be set aside on motion, or by the court sua sponte when brought to its attention.

Appeal from Circuit Court, Sarasota County; W. T. Harrison, judge.

COUNSEL

John B. Singeltary, of Bradentown, for appellants.

Burket & Fish and Harold H. Flower, all of Sarasota, for appellee.

OPINION

BROWN C.J.

The appeal, motion to dismiss which is now before us, was taken from an interlocutory order abrogating and setting aside a decree pro confesso, which had been entered against the complainant in the original bill for failure to answer, plead, or demur to the corss-bill.

The cross-bill had named as parties cross-complainant therein several parties who had not been named as defendants in the original bill. Promptly after the filing of the cross-bill, the complainant filed a motion to strike the same on this and other grounds. The cross-bill prayed, among other things, a temporary injunction, and at the hearing on this question counsel for complainant in the original bill appeared and argued in opposition thereto. After this hearing, and while the motion to strike the cross-bill was pending and undisposed of, the decree pro confesso was entered. A motion to set aside the decree pro confesso was made by complainant in the original bill upon several grounds, among them being the pendency of the motion to strike, the existence of a meritorious defense, and the inability of solicitors for complainant to get the cross-bill or a copy thereof for inspection; that said cross-bill had been withdrawn from the court files as soon as filed by a person affiliated with the solicitor who had filed the same, and that he had failed to respond to a request for same or a copy thereof until after the expiration of time for filing pleadings thereto; that solicitors for complainant had only had an opportunity for a cursory glance at the cross-bill during the argument on the application for temporary injunction, and it was from the information thus hurriedly obtained that they had been able to draft their motion to strike.

It is the general rule that appeals lie only from final judgments and decrees, and, where this rule is changed by statute, as has been done in this state in equity cases (section 3169, Rev. Gen. Stats. of 1920), so as to make interlocutory orders and decrees separately appealable, the scope of the statute will not be enlarged by construction. 2 R. C. L. 39.

It is also the general rule in most jurisdictions that no appeal will lie to the action of a court in the exercise of a discretionary power, such as the opening of defaults or setting aside decrees pro confesso, in the absence of a statute to the contrary, but where the discretion vested in the court is not absolute, but is a legal discretion to be exercised in accordance with established rules of law or principles of equity, it is the rule in most jurisdictions that the decision of the court is reviewable to the extent of determining whether there has been such a gross abuse of discretion affecting a substantial right of the party complaining as will call for a reversal. 3 C.J. 468, 472; 4 C.J. 796; 2 Ency. Pldg. & Prac. 107; 2 R. C. L. 44; Ruff v. Ga., etc., Ry. Co., 64 So. 782, 67 Fla. 224; Jefferson County v. Hawkins, 2 So. 362, 23 Fla. 223.

The setting aside of a decree pro confesso on motion or petition before the same becomes absolute should be distinguished from vacating or setting aside the final decree rendered upon the bill so taken as confessed, as provided for in section 3158 of Rev. Gen. Stats. of 1920, although many of the rules applicable to the one are applicable to the other. 21 C.J. 793.

'Courts of general equity jurisdiction possess the inherent power and it is their duty, of their own motion, to correct or set aside any order or decree made or entered improvidently or by inadvertence of the court, unless such order or decree by the passage of time, or for some other reason, has passed beyond the control of such court. * * * The order complained of, being an interlocutory order in an equity action, remains within the control of the chancellor, at least until the entry of the final decree, in the absence of intervening and effective appellate jurisdiction.' Mitchell v. Mason (Fla.) ...