Macfarlane v. Dorsey

• Decision Date: 18 April 1905
• Citation: 49 Fla. 341,38 So. 512
• Parties: MACFARLANE v. DORSEY et al.
• Court: Florida Supreme Court

38 So. 512

49 Fla. 341

MACFARLANE v. DORSEY et al.

Florida Supreme Court, Division A.

April 18, 1905

Appeal from Circuit Court, Hillsborough County; Joseph B. Wall Judge.

Bill by E. J. Hills against J. H. Dorsey and Emily C. Dorsey. David S. Macfarlane files a cross-bill. Decree for cross-complainant. From an order setting aside the decree, he appeals. 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 of 1892; 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 of 1892, 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, which he was prevented from interposing at the proper time by the existence of strong and unavoidable circumstances. The proposed answer of the defendant should also be exhibited to the court at the time of the making of the application.

3. An interlocutory order 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 thereon is assigned as error, unless it clearly appears that the bill of complaint is without equity, in which event such order will not be reversed, but the bill will be dismissed without prejudice.

4. Where the title to land has never been in the judgment debtor, but is held by another on a secret trust for such debtor, such land is not subject to levy and sale under an execution at law issued upon a judgment recovered against such debtor, but is an equitable asset, and can be reached only by proper proceedings in a court of equity.

COUNSEL

S. B. Turman, for appellant.

Gunby &amp Gibbons, for appellees.

On the 26th day of November, 1902, E. J. Hills filed his bill in chancery in the circuit court for Hillsborough county against the appellees for the foreclosure of a mortgage executed by the appellees upon certain lands in said county; also making as parties defendant the appellant and certain others who claimed some interest as judgment creditors or otherwise. Various and sundry pleadings were filed in the cause by the respective parties, but it is unnecessary to specify or describe them further than to state that on the 4th day of September, 1903, the appellant filed a cross-bill in the suit, making the appellees and the other defendants in the original bill cross-defendant. To this cross-bill the appellees interposed a demurrer on the 5th day of October, 1903, but before any disposition was made thereof applied to the court for leave to withdraw it. On the 20th day of January, 1904, the chancellor made an order allowing the appellant to file an amended cross-bill instanter, which amended cross-bill was filed on the same day, permitting the appellees to withdraw their demurrer, and giving them until the rule day in February next in which to answer. On the rule day in February a decree pro confesso was entered by the clerk against the appellees. On the 14th day of April, 1904, the appellant filed a praecipe dismissing his cross-bill as to all of the cross-defendants except the appellees, and on the same day the chancellor rendered a final decree in favor of the appellant and against the appellees to the effect that there was due from J. H. Dorsey, one of the appellees, to the appellant, the sum of $3,095.86; that Emily C. Dorsey, the other appellee, held the title to the lands described therein in trust for the creditors of J. H. Dorsey; and in default of the payment of said sum that the lands be sold, a special master being appointed for that purpose. It was further recited in the decree that the cross-bill had been dismissed as to all of the other defendants, that a decree pro confesso had been regularly entered against the appellees, and that the rights and priorities of mortgagees and judgment creditors were not adjudicated.

On the 17th day of June, 1904, the special master made a report to the effect that he had sold the lands, in compliance with the decree, to M. B. Macfarlane, for the sum of $100. On the 20th day of July, 1904, before the report of the master was confirmed, the appellees filed a motion to set aside the final decree on the following grounds:

'First. That the cross-complainant, David S. Macfarlane, was not entitled, on the face of his cross-bill, to the final decree as entered, as the cross-bill on its face shows that he is not entitled to any relief in this court, and has no interest in the property against which the decree was entered.

'Second. That no proper default was ever entered against said J. H. Dorsey and Emily C. Dorsey, his wife, upon which final decree could be entered.

'Third. That Emily C. Dorsey and J. H. Dorsey had filed their demurrer on April 4, A. D. 1904, and that the same remained undisposed of at the time of the filing of the final decree.'

On the same day the chancellor made an order granting the motion, setting aside both the decree pro confesso and the final decree, and allowing the appellees until the rule day in September in which to answer. From this interlocutory order an appeal was entered by the appellant to the present term.

OPINION

SHACKLEFORD, J. (after stating the facts).

Four errors are assigned, but, as they are all based upon the granting of the interlocutory order...