Turner v. Jones

• Decision Date: 11 February 1914
• Citation: 64 So. 502,67 Fla. 121
• Parties: TURNER et al. v. JONES et al.
• Court: Florida Supreme Court

64 So. 502

67 Fla. 121

TURNER et al. v. JONES et al.

Florida Supreme Court

February 11, 1914

Appeal from Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Bill by C. B. Turner and others against Nathaniel Jones and others to enforce lien. Decree for defendants, and complainants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

On the 31st of August, 1912, the circuit judge sustained a demurrer to the bill, and required complainants to amend same by the 4th of September, 1912, and defendants to file plea demurrer, or answer to the amended bill by the 15th of October. No amendment of the bill was filed, as required by the order. Complainants filed a praecipe for a decree pro confesso on the 11th of October, 1912, and the clerk entered a decree pro confesso on the 15th of October, 1912, which was not a rule day, and there was no order by the judge for such a decree. Without notice of any sort to the defendants, the judge allowed complainants to file an amendment to the bill on the 30th of January, 1913. On the same day, and without notice to the defendants, a final decree was entered against the defendants. On the 20th of September, 1913, defendants filed a petition and notice to vacate the decree pro confesso and final decree, alleging, among other things, that they were ignorant of the status of the case, and the fact that the decree above mentioned had been entered, and setting up a meritorious defense. The circuit judge committed no error in granting the motion, and allowing the answer to be filed.

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.

COUNSEL Pattillo Compbell, of Pensacola, for appellants.

Reeves & Watson & Pasco and Beall & Anderson, all of Pensacola, for appellees.

OPINION

HOCKER J.

A bill was filed by appellants on October 26, 1911, in the circuit court of Escambia county against the trustees and deacons of the A Street Baptist Church to enforce an alleged lien against the property of the church. On the 4th of December 1911, the defendants filed a demurrer to the bill. On the 31st of August, 1912, the circuit judge sustained the demurrer, and required the complainants to amend their bill by the 4th of September, 1912, and the defendants to file their pleas, answer, or demurrer to the amended bill by the 15th of October, 1912. No amendment of the bill was filed as required. The complainants filed a praecipe for a decree pro confesso against the defendants on the 11th of October, 1912, and the clerk entered a decree pro confesso on the 15th of October, 1912, which was not a rule day, and there was no order by the judge for a decree pro confesso. Without notice of any sort to the defendants, the circuit judge (no doubt inadvertently) allowed the complainant to file an amendment to the bill on the 30th of January, A. D. 1913, after the expiration of the time fixed in his order. The clerk entered a decree pro confesso against the defendants on the 15th of October, 1912, which, as we have said, was not a rule day, and there was no order by the judge for the entry of such decree. On the same day on which the amendment was allowed to be filed, viz., 30th of January, 1913, and without notice to the defendants, a final decree was granted against them. On the 20th of September, 1913, a petition and motion were filed with the circuit judge to vacate the decree pro confesso, and final decree alleging, among other things, that they were ignorant of the status of the case, and of the fact that a final decree had been entered, and setting up that they had a meritorious defense to the suit. On the same day the solicitor for complainants filed the following motion:

'Now come before me the complainants and move for an order directing the clerk of the circuit court of Escambia county, Florida, to indorse the amendment to the original bill of complaint as having been filed on August 31, A. D. 1912.

'Pattillo Campbell,

'Solicitor for Complainants.'

This was accompanied by the following affidavit:

'This day, before the undersigned, personally appeared Pattillo Campbell, who, being duly sworn, deposes and says that he is solicitor for above-named complainants; that on the 31st day of August, A. D. 1912, he delivered to the clerk of the circuit court of Escambia county the amendment of the original bill of complaint, which amendment was received by said clerk, to be kept in his official custody; that it is the belief of the affiant that the said amendment has been on file with all the other papers in said case in the office of the said clerk since the said 31st day of August, 1912.

'Pattillo Campbell.

'Sworn to and subscribed before me this 19th day of September, A. D. 1913.

'L. W. Nelson, Notary Public.'

At the hearing of this motion the judge made the following order:

'This...