Sutton v. Zewadski

• Decision Date: 19 November 1915
• Citation: 70 Fla. 379,70 So. 433
• Parties: SUTTON v. ZEWADSKI.
• Court: Florida Supreme Court

70 So. 433

70 Fla. 379

SUTTON v. ZEWADSKI.

Florida Supreme Court

November 19, 1915

Rehearing Denied Jan. 5, 1916.

Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.

Suit by W. K. Zewadski, Jr., against T. E. Sutton. From decree for complainant and order denying motion to vacate decree pro confesso, defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

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 the case, but not where there has been inexcusable negligence in the applicant. Reasonable diligence and a meritorious defense must be shown.

It is the duty of parties to a litigation to take the steps in the progress of a cause which are provided in the Rules of Practice, or, when changed by the orders of the court, to follow the orders thus provided, when properly notified of them.

Orderly procedure, or proper notice of proposed steps in a cause are essential to the proper administration of justice.

In a suit in equity, as well as in an action at law, every presumption is in favor of the correctness of the rulings of the trial judge.

COUNSEL Lunsford & Shackleford, of Tampa, for appellant.

Guy B Zewadski, of Tampa, for appellee.

OPINION

PER CURIAM.

On the 21st day of May, 1914, W. K. Zewadski, Jr., filed his bill of complaint against T. E. Sutton. On the 6th day of July, 1914 the defendant filed his answer to the bill, incorporating therein certain special matters as a defense, for which he claimed the same benefit as though he had formally pleaded the same, in accordance with the provisions of section 1871 of the General Statutes of Florida. On the 3d day of August 1914, the complainant filed a petition for leave to amend his bill, reciting in his petition that by reason of certain matters and things contained in the answer it had become 'necessary to allege new facts, in order to get a complete answer.' On the same day that the petition was filed the circuit judge made the following order:

'The above-styled cause coming on this day to be heard upon the foregoing motion, without notice to the defendant, it is thereupon, upon due consideration thereof, ordered and decreed that the petitioner have leave to amend his bill as may be desired; said amended bill to be filed by the next succeeding rule day.'

On the same day the complainant filed his amended bill, in which he repeated all the material allegations contained in his original bill and also alleged additional matters. On the 7th day of September, 1914, the complainant filed his praecipe for a decree pro confesso, which evidently was not acted on, and on the same day the defendant filed his motion to vacate the order allowing the complainant to file his amended bill and to strike the amended bill from the files, for certain reasons and grounds set forth in such motion. On the 1st day of October, 1914, the court made an order, denying the motion to dismiss, and stating therein that such motion was not well founded in law, which order, for some reason which is not made to appear, was not filed until the 26th day of October, 1914. On the 2d day of November, 1914, the complainant filed another praecipe for a decree pro confesso, which apparently was not acted upon by the clerk, and on the 7th day of November, 1914, the court made the following order:

'The above-entitled cause coming on to be heard upon the motion of the complainant for a decree pro confesso, and it appearing to the sat sfaction of the court that complainant's bill of complaint was filed May 21, 1914, and defendant's answer filed on the rule day in July, 1914, and complainant's amended bill of complaint filed on the rule day in August, 1914, and that the defendant moved for the dismissal of the amended bill on the rule day in September, 1914, which motion was overruled, and has since failed to file any new or supplemental answer, or plead or demur to the said amended bill of complaint,

'It is thereupon ordered, adjudged, and decreed that the statements and allegations contained in the said amended bill of complaint are taken as confessed, and a decree pro confesso entered against said defendant.'

On the 21st day of November, 1914, the court made an order, referring the cause to a special master to take the testimony therein, on the same day the special master filed his report of the testimony, and on the same day the cause came on for a final hearing upon the pleadings, and the testimony so reported by the special master, and a final decree was rendered by the court in favor of the complainant and against the defendant, wherein the mortgaged premises were ordered sold for the payment of the amount found to be due from the defendant to the complainant. On the 11th day of December, 1914, the defendant filed his motion to set aside the decree pro confesso, to vacate the order of reference to strike from the files the special master's report, and also to vacate the final decree, upon the grounds and for the reasons set forth in such motion. On the 19th day of December, 1914, the court made the following order upon such motion:

'This cause coming on this day to be heard in open court, at the fall term thereof, 1914, upon the motion of the defendant to set aside the decree pro confesso made and signed by the court in said cause the 7th day of November, 1914, and to set aside and vacate the order of reference made and signed by the court in said cause on the 16th day of November, 1914 and to vacate and set aside and to strike from the files in said cause the master's report and findings made in said cause the 21st of November, 1914, and to vacate and set aside the final decree made and signed by the court in said cause the 24th day of November, 1914, which motion appears of file in said cause marked 'Filed, December 11, 1914,' by the clerk of said court, and the parties being present or represented by their solicitors, to wit, the complainant being present in person and represented by G. B. Zewadski, Esq., his solicitor; and the defendant being represented by J. J. Lunsford, Esq., his solicitor, and the court having considered the said motion, together with the...