Myers v. Mcgahagan

• Decision Date: 23 December 1890
• Citation: 26 Fla. 303,8 So. 447
• Parties: MYERS v. McGAHAGAN.
• Court: Florida Supreme Court

8 So. 447

26 Fla. 303

MYERS v. McGAHAGAN.

Florida Supreme Court

December 23, 1890

Appeal from circuit court, Marion county; J. J. FINLEY, Judge.

Syllabus by the Court

SYLLABUS

1. Under chancery rule 51, a judge may, upon overruling a demurrer to a bill, limit the time for answering to a time within the next succeeding rule-day, and if the defendant fail to answer within that time the bill may be taken as confessed and the cause be proceeded in accordingly. Such restriction of time rests in the sound discretion of the chancellor, and will not be interfered with on appeal, unless it is shown there has been an abuse of this discretion.

2. Parties moving to open decrees by default should show both reasonable diligence and a meritorious defense.

COUNSEL James D. McConnell, for appellant.

Badger & McConathy, for appellee.

OPINION

MITCHELL J.

The appellant, Myers, being indebted to E. W. Agnew & Co., on April 11, 1881, gave to Agnew & Co. his note for $500, and mortgage to secure payment of the same; and the appellant, being indebted to Agnew & Co. in the further sum of $1,046.60, on May 10, 1884, gave Agnew & Co. his note for this amount, and mortgage to secure the payment of the same. These mortgages (the bill alleges) were for a valuable consideration transferred to the appellee, (complainant below,) and the said amounts, and the interest thereon, being due and unpaid, complainant filed his bill alleging the making of the notes and executing the mortgages to Agnew &amp Co. by the defendant, the transfer of the same by Agnew & Co. to complainant, the non-payment of the indebtedness of the defendant to the complainant, and prays for foreclosure of the mortgages, etc.

The bill was demurred to, in that the bill does not contain the original promissory notes; because the bill does not contain a transfer of said promissory notes from E. W. Agnew & Co. to complainant; because the bill is not sufficient in law and equity.

On May 16, 1887, the demurrer was overruled and defendant granted 10 days to plead or answer; but the defendant failing to do either, afterwards, on May 17th decree pro confesso was taken against him for want of plea or answer, and on the same day a final decree was granted against the defendant for said several amounts, and also solicitors' fees and costs of suit.

Afterwards on June 7, 1887, the defendant filed a motion to set aside the decree pro confesso and final decree, basing said motion upon affidavits filed by him. The defendant himself deposes that he was not advised of the ruling of the court upon the demurrer which required him to plead or answer in 10 days, and that, without his knowledge, the decree pro confesso and final decree were entered against him, and that he has a good defense against the claim of complainant by way of set-off and other equitable brounds. J. D. McConnell, solicitor for defendant, deposes that he was absent when the demurrer was overruled and leave granted to plead or answer, and was absent some time thereafter, on professional business, and was not advised of the ruling of the court on the demurrer; and, owing to the fact that he was not so advised, he did not plead or answer as required, and that the decree pro confesso and final decree were entered without his knowledge; that the defendant has a good defense by way of set-off, supported by proof, and other equitable grounds, and that he is now ready to show the same to the court.

This motion was overruled August 19, 1887, and afterwards, on the 24th day of the same month, the defendant moved for a rehearing upon the motion to open decree pro confesso and final decree, which last motion was also overruled.

The grounds of this motion are that on May 25th solicitor for defendant inquired of the deputy clerks if there had been any ruling on the demurrer, but that he was informed that the papers had been sent to the judge at Gainesville, and had not been returned to the clerk's office; that said solicitor searched the clerk's office, and the papers in the case could not be found, and that his object in making such inquiry and search was that he could comply with any order of ...