Odum v. Morningstar, 4231
| Decision Date | 18 December 1963 |
| Docket Number | No. 4231,4231 |
| Citation | 158 So.2d 776 |
| Court | Florida District Court of Appeals |
| Parties | Clyde ODUM et ux., Appellants, v. H. F. MORINGSTAR, Appellee. |
Clyde H. Wilson, Sarasota, for appellants.
Elwood P. Safron, Punta Gorda, for appellee.
BARNS, PAUL D., Associate Judge.
On February 14, 1963, the defendant-appellee filed a motion to set aside a decree pro confesso and a final decree against him, which motion was granted by order on May 27, 1963. Thereupon plaintiff appealed from the order vacating the decree pro confesso and the final decree. We affirm.
A summons to answer appellant's complaint was served on appellee on January 22, 1962, and the defendant filed a motion to dismiss on February 12, 1962; before the motion to dismiss was filed, but on the same day, appellant-plaintiff filed praecipe for decree pro confesso, which was promptly entered by the clerk. On May 10, 1962, at an ex parte hearing, final decree was entered against the defendant, which decree recited the entry of the decree pro confesso.
The time limit for answering or objecting by motion was 20 days after service of process which 20th day fell on February 11, 1962; but since that day was a Sunday the defendant-appellant had until the next day, on which day he filed his motion to dismiss. This motion to dismiss was timely served and filed and he was not in default and it was error to have entered the decree pro confesso as well as the final decree at the ex parte hearing.
Appellant makes a point for reversal that the court had lost jurisdiction to enter the order vacating the final decree entered more than twelve months previous to the order. However, the motion to vacate was 'made' a little over nine months after the entry of the final decree and a little over one year after the entry of the decree pro confesso.
Rule 3.9, Rules of Civil Procedure, 31 F.S.A. authorizes the clerk to enter a decree pro confesso against a defendant '[i]f the defendant shall fail to serve his answer or other defense to the complaint, within the time prescribed * * *.' The appellant-plaintiff's appendix shows that the defendant mailed a copy of his motion to dismiss on the day it was filed February 12 1962. Rule 1.4, Rules of Civil Procedure, 30 F.S.A., provides that 'Service by mail shall be deemed complete upon mailing.' This language was an adoption of like words in Rule 5(b), Federal Rules of Civil Procedure, Hence, it appears that the entry of the decree pro confesso by the clerk was premature and unauthorized, and therefore a nullity, since the defendant had all of February 12 to answer or serve a 'motion' setting up defenses under Rule 1.11(b), Rules of Civil Procedure.
Appellant argues that the lower court lost jurisdiction over the final decree upon the failure of the defendant to serve a petition for rehearing within 10 days after the entry of the final decree. The rule of law as stated in the case of Huntley Bros., Inc. v. Gooding, Fla.App., 149 So.2d 55 is relied on in support of his position. Since the rendition of the foregoing decision, the jurisdiction of a trial court to grant relief on motion from a final decree has been liberalized by Rule 1.38(b), Rules of Civil Procedure, which rule is an adoption in part of Rule 60(b), Federal Rules of Civil Procedure; Rule 1.38(b) provides that 'On motion * * * the court may relieve a party * * * from a final judgment, decree * * * for the following reasons: (1) mistake, inadvertence,...
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Gibbons v. L.W. Blake Memorial Hosp.
...finality of the judgment or suspend its operation. Fla.R.Civ.P. 1.540(b); Bland v. Mitchell, 245 So.2d 47 (Fla.1970); Odum v. Morningstar, 158 So.2d 776 (Fla.2d DCA 1963). See also, Graham v. Eisele, 245 So.2d 682 (Fla.3d DCA 1971). We, therefore, address only the trial court's denial of th......
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Rogers v. First Nat. Bank at Winter Park
...a final judgment is appealable, such an appeal will not bring up for review the final judgment sought to be vacated. Odum v. Morningstar, Fla.App.1963, 158 So.2d 776. Confining ourselves, therefore, to the sole issue which this court has jurisdiction to determine, we must decide whether the......
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Crystal Lake Golf Course, Inc. v. Kalin, 70--1098
...court abused its discretion in denying defendant's motion to vacate which order of denial is a final appealable order. Odum v. Morningstar, Fla.App.1963, 158 So.2d 776; Rogers v. First National Bank at Winter Park, Fla.App.1969, 223 So.2d 365, rev'd on other grounds Fla., 232 So.2d 377. Upo......
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Rushing v. Chappell, N--265
...designated as Rule 1.38, Fla.R.C.P., and was construed by the District Court of Appeal, Second District of Florida, in Odum v. Morningstar, 158 So.2d 776 (Fla.App.1963) as 'The purpose of the rule was to allow 'motion procedure' in lieu of a bill of review as known to the classical equity p......