Prout v. Dade County Sec. Co.

• Decision Date: 23 April 1908
• Citation: 47 So. 12,55 Fla. 816
• Parties: PROUT et al. v. DADE COUNTY SECURITY CO.
• Court: Florida Supreme Court

47 So. 12

55 Fla. 816

PROUT et al. v. DADE COUNTY SECURITY CO.

Florida Supreme Court, Division B.

April 23, 1908

Headnotes Filed July 11, 1908.

Appeal from Circuit Court, Dade County; Minor S. Jones, Judge.

Bill by the Dade County Security Company against Martha W. Prout and husband. Decree for complainant, and defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

In order to entitle defendants to have the court open a decree pro confesso, they must have shown both reasonable diligence and a meritorious defense.

The object of the statute authorizing a decree pro confesso was to provide a just and reasonably expeditious mode of obviating the delays and difficulties to which complainants were subjected by the neglect of defendants and their disobedience of the mandates of the court, and no construction of the statute should be indulged that would encourage defendants in their neglect of the process of the court when duly served upon them.

The question of setting aside a decree pro confesso is addressed to the sound discretion of the court, which will be exercised according to the circumstances of each case; but it should never be set aside when it is the consequence of the defendant's own negligence. The rule is that motions of this character address themselves to the sound discretion of the court, and the exercise of this discretion will not be interfered with by the appellate court, unless there has been a gross abuse of that discretion.

The forty-third rule of practice for the government of the circuit courts is as follows: 'No private agreement or consent between parties or their attorneys in respect to the proceedings in a cause shall be of any force before the court, unless the evidence thereof shall be in writing subscribed by the party, or his attorney, against whom it is alleged. Agreements may be made in open court and noted by the judge in his minutes.' When there has been a total disregard of this rule, without any reason therefor, except a conflict of statement between the parties as to whether there was or was not any verbal stipulation out of court for time to answer, there has been no abuse of discretion for the court to deny a motion to open a decree pro confesso for a failure to answer when required so to do.

By rule 44 in equity, after the entry of an order taking a bill as confessed in default of pleading, the cause shall be proceeded in ex parte. After decree pro confesso, the defendant is not entitled to notice of future proceedings.

Objections to a final decree because of errors alleged to have been committed by the master examined, and found to be without merit.

COUNSEL

Geo. A. Worley, for appellants.

W. W Erwin, for appellee.

OPINION

PARKHILL J.

On the 22d day of December, 1905, the appellee filed its bill of complaint against the appellants in the circuit court of Dade county for the foreclosure of a mortgage on certain lands. From a final decree rendered on the 8th day of July, 1907, the defendants appeal.

On the 1st day of January, 1906, the defendants, Martha W. and William W. Prout appeared by Solicitors Price & Rand. On February 5th, the time for the defendants to plead, answer, or demur was extended to the rule day in March, 1906. On that day the defendants, by their solicitor, G. A. Worley, filed a demurrer to the bill of complaint. On the 24th day of April, 1906, the court overruled the demurrer and allowed defendants until the June rules to answer. The defendants did not answer, and on the 16th day of June, 1906, upon affidavit and petition of W. W. Erwin, counsel for complainant, the court ordered that the bill of complaint be taken as confessed, and the entry by the clerk of a decree pro confesso against defendants. The affidavit and petition of counsel and the order of court directing a decree pro confesso are as follows:

'The Dade County Security Company, a Corporation, Complainant, versus Martha W. Prout and William W. Prout, Her Husband, Defendants.

'Affidavit of W. W. Erwin. Motion for Order. Order of Judge.

'State of Florida, County of Dade--ss.:

'W. W. Erwin, being first fully sworn, deposes and says that he is one of the solicitors of the complainant herein; that the bill of complaint herein was filed on December 22, 1905; that on January 1, 1906, the defendants appeared by Price & Rand, attorneys, at Miami; that on February 5th the court issued an order extending time to answer to the March rules; that on March 5, 1906, the defendants, by George A. Worley, their attorney, filed a demurrer to the bill of complaint; that on March 29, 1906, the demurrer to the bill was set down for argument on April 21, 1906, and notice of hearing before the court at Titusville was served on George A. Worley, defendants' attorney, and that on April 23, 1906, the court by its order overruled the demurrer to the bill, which said order was filed with the clerk on April 24, 1906, and duly recorded in the circuit court minutes in Book 4, on page 198; that, in said order overruling demurrer, defendants were allowed until the June rules to answer; that on June 4, 1906, the rule day in June, George A. Worley, one of the attorneys for the defendants, telephoned to affiant saying that Mr. Prout was out of the city and could not sign the answer, and requested an extension of time to answer, and that affiant told said Worley by telephone that the time to answer might be extended until the 11th day of June, 1906; that no demurrer, plea, answer, or other pleading has been served upon the solicitors for the complainant or filed in the office of the clerk of the circuit court since the order overruling the demurrer aforesaid; that W. W. Prout, the defendant, has been in the city of Miami since the night of the 12th of June, A. D. 1906; and further affiant sayeth not.

'W. W. Erwin.

'Sworn to and subscribed before me this the 13th day of June, A. D. 1906.

'[N. P. Seal.] Mabel L. Godson,

'Notary Public.

'Now come Patterson & Erwin, solicitors for the complainants herein, and move the court for an order that the bill herein be taken as confessed for want of plea, answer, or demurrer.

Patterson & Erwin.

'Solicitors for Complainant.

'It appearing to the court, from an examination of the records in the foregoing cause, that the defendants herein appeared in said cause by Price & Rand on January 1, 1906, and that on March 5th a demurrer to the bill of complaint herein was filed by George A. Worley, solicitor for the defendants, and that said demurrer was overruled by order of the court at Titusville, on April 23, 1906, which said order overruling demurrer extended the time to answer to the June rules, 1906; and it further appearing by the affidavit of W. W. Erwin that a verbal extension of time to answer on or before the 11th day of June, was given to George A. Worley, solicitor for the defendants, by telephone, and that there has been no answer, plea, or demurrer filed in said cause or served upon the solicitors for the complainants since the order overruling the demurrer aforesaid; and it further appearing by the certificate of the clerk that there is on file in his office no plea, answer, or demurrer to the bill of complaint herein, and Patterson & Erwin, solicitors for the complainant, have moved the court for an order that the clerk of the circuit court of the Seventh judicial circuit of Florida, in and for Dade county, shall enter a decree pro confesso herein, for want of any plea, answer, or demurrer:

'It is hereby ordered, adjudged, and decreed that the clerk of the circuit court aforesaid forthwith enter a decree pro confesso in the above-entitled suit, and that the bill of complaint of complainant herein be taken as confessed, and that the cause be proceeded with ex parte.

'Done and ordered at chambers at Titusville this 16th day of June, A. D. 1906.

'Minor S. Jones, Judge.

'State of Florida, County of Dade--ss.:

'I, A. K. Dearborn, clerk of the circuit court of the Seventh judicial circuit of Florida, in and for Dade county, do hereby certify that there has been no plea, answer, or demurrer filed in the case of Dade County Security Company v. W. W. Prout and Wife (foreclosure of mortgage) since the order overruling demurrer, filed in my office April 25, A. D. 1906.

'In witness whereof, I have hereunto set my hand and seal this 13th day of June, A. D. 1906.

'A. K. Dearborn, Clerk Circuit Court,

'By G. W. Murfitt, D. C.'

The decree pro confesso is as follows:

'In the Circuit Court of the Seventh Judicial Circuit, in and for Dade County, Florida, in Chancery.

'Dade County Security Company v. Martha W. Prout and Husband.

'The judge of the circuit court having filed herein an order directing the clerk to enter an order in the chancery order book, taking the bill of complaint as confessed by the defendants, Martha W. Prout and husband, defendants in this cause, in the above-entitled suit, and it appearing from the records and files of said suit that personal service by subpoena in chancery was had upon said defendants as required by law, requiring said defendant to appear to said bill of complaint on the rule day in June, A. D. 1906, and the defendants having failed to plead, answer, or demur to the said bill of complaint on the rule day in June, A. D. 1906. It is therefore ordered that the said bill be taken as confessed.

'Done and ordered at the clerk's office in Miami, Florida, this 20th day of June, A. D. 1906.

'A. K. Dearborn, Clerk Circuit Court,

'[Seal Cir. Ct.] By G. W. Murfitt, D. C.'

On the 20th day of July, 1906, the defendants filed the following motion to set aside the decree pro confesso:

'In the Circuit Court of the Seventh Judicial Circuit of Florida, in and for Dade County, in Chancery.

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