Sydney v. Auburndale Const. Corp.

• Decision Date: 05 December 1928
• Citation: 96 Fla. 688,119 So. 128
• Parties: SYDNEY v. AUBURNDALE CONST. CORPORATION et al.
• Court: Florida Supreme Court

119 So. 128

96 Fla. 688

SYDNEY v. AUBURNDALE CONST. CORPORATION et al.

Florida Supreme Court, Division B.

December 5, 1928

Suit by Mary E. Sydney against the Auburndale Construction Corporation and others. From an order granting defendant's motion to vacate a decree pro confesso and set aside the final decree, complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Question of setting aside decree pro confesso is within discretion of chancellor (Equity Rule 45). In its inception the question of setting aside a decree pro confesso is addressed to the sound discretion of the chancellor, to be exercised according to the circumstances of each particular case.

Legislature cannot prescribe rules regulating conduct of court's business or matters within inherent power of court to regulate. The Legislature has no power to prescribe rules regulating the conduct of the court's business or matters within the inherent power of the court to regulate.

Law relating to procedure in case bill is taken pro confesso held not to infringe on court rule (Comp. Gen. Laws 1927, § 4945; Equity Rule 45). Section 4945, Compiled General Laws of Florida, does not infringe on Equity Rule 45, but deals with a question subject to legislative regulation.

Appeal from Circuit Court, Polk County; H. F Atkinson, judge.

COUNSEL

Burdine, Terry & Fleming and L. L. Robinson, all of Miami, for appellant.

Olen R Clements, of Miami, for appellees.

OPINION

TERRELL J.

Appellant in the court below brought suit against appellees to foreclose a mortgage. There was a decree pro confesso and final decree entered against appellees, the final decree bearing date of December 1, 1927. On December 19, 1927 appellees filed their motion to vacate the decree pro confesso and set aside the final decree, and for leave to file their answer to the bill of complaint. On January 24, 1928, the chancellor made his order granting the said motion. Appeal was taken from that order. In connection with the foregoing, other proceedings and steps in the cause were taken; but they are immaterial to a disposition of the questions raised here.

Was the chancellor within his discretion in vacating the decree pro confesso and setting aside the final decree?

Appellant contends that the decree of the chancellor, vacating the decree pro confesso and setting aside the final decree, not having been made within 20 days from the date of the final decree, was in violation of Equity Rule 45, the pertinent part of which is as follows:

'Rule 45. When the bill is taken pro confesso, the court may proceed to a decree at any time, and such a decree rendered shall be absolute, unless the court shall, within twenty days after rendering the decree, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant.'

As against the contention of appellant, appellees contend that the action of the chancellor was controlled by section 4945, Compiled General Laws of Florida 1927 (section 3158, Revised General Statutes of Florida), the pertinent part of which is as follows:

'4945. (3158.) When the bill in any cause is taken pro confesso, the court may proceed to a decree, and such a decree rendered shall be absolute unless the court shall set aside the same or enlarge the time for filing the answer for cause shown upon motion and affidavit of the defendant, made and filed within twenty days after the entry of the final decree.'

In fine, the appellant contends that by the terms of Equity Rule 45 the motion to vacate the decree pro confesso and set aside the final decree must be made and disposed of by the chancellor within 20 days, unless additional time is allowed while appellees contend that by the terms of section 4945, Compiled General Laws of Florida, the motion to vacate the decree pro confesso and set aside the final decree must be made and filed within 20 days, but that it may be disposed of within a reasonable time before or after the lapse of the 20 days in the discretion...