Strickland v. Jewell

• Decision Date: 10 July 1920
• Citation: 85 So. 670,80 Fla. 221
• Parties: STRICKLAND et al. v. JEWELL.
• Court: Florida Supreme Court

85 So. 670

80 Fla. 221

STRICKLAND et al. v. JEWELL.

Florida Supreme Court

July 10, 1920

Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.

Suit by B. W. Jewell against A. Mildred Strickland and another to foreclose a mortgage. A decree for plaintiff pro confesso was entered, motion to set aside was denied, and defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

Although the oath of defendants to the answer is expressly waived in the bill, defendants are not excused from signing the answer without which it is not their answer, and in such case, where the answer is signed only by the solicitor for defendants, it may be treated as no answer and a decree pro confesso entered.

Before a decree pro confesso which has been properly entered should be set aside on motion of defendants, they must not only show reasonable diligence, but also a meritorious defense.

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 in consequence of defendants' own negligence, 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.

Where a husband signs a promissory note with his wife to aid her in obtaining a loan of money and also unites with her in the execution of a mortgage on her real property to secure the payment of the note, the husband is personally liable on the note, even though the wife is not so liable.

The maker of a promissory note for which there was a consideration will not be permitted to vary or contradict his written contract by showing a parol contemporaneous agreement that he was not to be liable upon the note.

COUNSEL H. L. Anderson, of Jacksonville, for appellants.

Fleming & Fleming, of Jacksonville, for appellee.

OPINION

JONES Circuit Judge.

This was a suit to foreclose a mortgage in the circuit court of Duval county. A demurrer to the bill was overruled August 19th, and an order made requiring defendants to plead or answer on or before the following 15th of September. On September 9th, answer was filed signed only by solicitor for defendants. On September 23d upon motion of complainant the court, treating the putative answer as a nullity, entered a decree pro confesso and referred the case to a special master to take and report the testimony. On September 24th, motion was filed to set aside the decree pro confesso and for leave to amend the answer by adding thereto the signatures of the defendants on the grounds that it was not possible on account of absence to procure the signatures of defendants to the answer on or before the date fixed by the court for filing same, and that the decree pro confesso was entered without notice to the defendants. On September 30th, the motion to set aside the decree pro confesso supported by an affidavit of defendants' solicitor and an affidavit of defendant J S. Strickland was heard and denied and final decree entered. Defendants appeal and assign as errors the entry of the decree pro confesso, the order denying the motion, and from all other orders since the entry of decree pro confesso.

Although the oath of defendants to the answer is expressly waived in the bill, defendants are not excused from signing the answer without which it is not their answer, and in such case, where the answer is signed only by the solicitor for defendants, it may be treated as no answer and a decree pro confesso entered. See City of Ocala v. Anderson, 58 Fla. 415, 50 So. 572, and authorities there cited.

The decree pro confesso was properly entered, and before it should be set aside on motion of defendants they must not only show reasonable diligence, but also a meritorious defense. A showing of reasonable diligence without a meritorious defense, or a meritorious defense without reasonable diligence, is unavailing. See Keil v. West, 21 Fla. 508; Myers v. McGahagan, 26 Fla. 303, 8 So. 447; Turner v. Jones, 67 Fla. 121, 64 So. 502; Prout v. Dade County Security Co., 55 Fla. 816, 47 So. 12; Friedman v. Rehm, 43 Fla. 330, 31 So. 234.

In the affidavit of the solicitor for defendants he deposes:

'That affiant at the time the answer of defendants was filed herein on the 9th day of September, 1918, was preparing to leave the state of Florida to be absent for a period of about two weeks; that affiant in fact left the state of Florida before the 16th day of September, 1918, the date at which defendants were required by order of the court to file their said answer; that affiant was absent from the state of Florida until the 24th day of September, 1918, and that the absence of the defendants and the fact that affiant was compelled to be out of the state of Florida as above stated accounts for the failure of defendants to sign the answer.'

The affidavit of defendant J. S. Strickland recites:

'That the defendants were absent from Duval county, Fla., at the time, affiant is informed; that the answer in this case was prepared by counsel for defendants and defendants were for this reason unable to sign the answer filed by their counsel in this cause. Affiant further says that he is informed and so states that the answer in this cause was filed by affiant's counsel in advance of the time fixed for filing same because affiant's said counsel was preparing to leave the state of Florida, and in fact said counsel for defendants did leave the state of Florida prior to the 16th of September, 1918. Affiant further says that the absence of defendants and the fact that defendants' counsel was compelled to leave the state of Florida is the reason why said answer was not signed by defendants. Affiant further says that the defendants are ready and willing to sign the answer which was filed by their said counsel if permitted by the court to do so. Affiant further says that neither affiant nor his said counsel has been guilty of any negligence in the matter of filing said answer or in the omission to sign same, but that in the circumstances above set forth it was impossible for defendants to sign said answer before the same was filed.'

The affidavits are quoted at length because it is assumed that they set forth all the facts and circumstances favorable to the defendants tending to show reasonable diligence, such as to excuse them for failure to put in a proper answer and to give them the right to have the decree pro confesso set aside and to permit them to sign the proposed answer.

The defendants were given from the 19th day of August to and including the 15th day of September to file an answer. The only excuse offered by the solicitor for his failure to have the defendants sign the answer is that he was preparing to leave the state to be absent about two weeks, and in fact did leave the state before the last day fixed by the order of the court upon which the answer...