LEONORA T. PHILLIPS, APPELLANT,
v.
WILLIE HOWELL, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Phillips appeals an order setting aside a decree pro confesso and final decree that had been entered against Howell. The Florida Supreme Court affirms the lower court's discretionary order to vacate the decree and allow Howell additional time to answer, finding no abuse of discretion and presuming the motion was timely filed within the statutory 20-day period.
The court affirms the lower court's order, holding that the order is presumed to have been made within twenty days of the decree's entry because nothing in the record shows otherwise, and absent a showing of abuse of discretion, the order to vacate and allow the defendant to answer is proper.
“When a decree is signed by the Chancellor and delivered by the solicitor to the Clerk and received by him for filing, it is in law filed from the moment he so receives it.”
Establishes when a decree is deemed filed for purposes of calculating the statutory filing period.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA decree pro confesso was entered on December 10, 1918, based on constructive service where the defendant concealed himself. A Master took proof of th…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Constructive Service cases and more on FLexlaw
Ellis, J.
This is an appeal from an order vacating and setting aside a “final decree and decree pro confesso” and allowing the defendant further time to answer the bill of complaint.
A decree pro confesso• was made by the Chancellor 'at Chambers on the 10th day of December, 1918. • It was therein recited that constructive service had been made upon the defendant because he conceals himself so that personal service cannot be made upon him. An order of reference was made to a Master to take the “proof of the allegations of fact set out in the complainant’s bill” and report to the court with his findings. Testimony was taken, and the Master made report to the court in writing of the same together with his findings on the 27th day of December, 1918, and on the same day the judge rendered the final decree, which was filed on the 9th day of January, 1919.
On the 22nd day of January, 1919, the defendant made his motion to open the decree pro confesso and set aside the final decree. On the 11th day of April, 1919, the order was made setting aside the pro confesso order and final decree. On the same day defendant’s answer was filed. ‘
Affidavits filed in opposition to the motion show that the final decree was filed upon the same day that it was rendered, namely, December 27, 1918. There is nothing in the record, however, to show when the decree was entered. The motion to set aside the final decree appears to have been made more than twenty days after it was rendered and filed.
When a decree is signed by the Chancellor and delivered by the solicitor to the Clerk and received by him for filing, it is in law filed from the moment he so receives it. See County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 South. Rep. 471; Jacksonville St. R. Co. v. Walton, 42 Fla. 54, text 77, 28 South. Rep. 59. The file mark is merely evidence of the paper having been filed. See Willingham v. State, 21 Fla. 761, text 789. The statute provides for the setting aside a final decree upon motion and affidavit within twenty days after its entry. See Sec. 1898, Gen. Stats., 1906, Florida Compiled Laws, 1914.
When the decree is actually recorded in the minutes of the court, the formality of entry is completed. Within twenty days from that time the court may upon motion and affidavit for cause shown set aside a final decree. See Gasque v. Ball, 71 Fla. 257, 71 South. Rep. 329; Sec. 1898, Gen. Stats., supra.
The rule that deceit, surprise or irregularity in obtaining a decree must be shown to enable the court to open the decree and let in a defense, applies when the application is made more than twenty days after the entry of the decree. See Roebuck v. Batten, 64 Fla. 424, 59 South. Rep. 942; Peoples Realty Co. v. Southern Colonization Co., 78 Fla. 628, 83 South. Rep. 527.
The order in this case is presumed to have been made within twenty days after the entry of the final decree, because there is nothing in the record to show to the contrary. And as no abuse or. discretion is shown, the order is affirmed.
Browne, O. J., and Taylor, Whitfield and West, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Sawyer v. Gustason, 96 Fla. 6 (Fla. 1928)…appear, and the proposed answer should be exhibited.” (Italics ours.) See also Friedman et al., v. Rehm, 43 Fla. 330, 31 So. R. 234; Rice v. Cummings, 51 Fla. 535, 40 So. R. 889; McFarlane v. Dorsey, 49 Fla. 341; 38 So. R. 512; Phillips v. Howell, 81 Fla. 380, 88 So. R. 126; Ala. Hotel Co. v. Mott Iron Works, 86 Fla. 608, 98 So. R. 825; Fla. Chancery Juris, 369, et seq.; 14 Enc. Pldg. & Prac. 76, et seq.; 21 C. J. 715; Gibbs v. Ewing, 113 So. R. 730; Kroier v. Kroier; decided at present term; Gainesville…
-
Wildwood Crate & Ice Co. v. The Citizens Bank of Inverness, 98 Fla. 186 (Fla. 1929)…ws 1927, from which the time for taking an appeal begins to run. See Sec. 4948, Comp. Gen. Laws 1927. The entry of a decree is completed when it is recorded in the minutes of the court. Gasque v. Ball, 71 Fla. 257, 71 So. R. 329; Phillips v. Howell, 81 Fla. 380, 88 So. R. 126; Wilmot v. Equitable B. & L. Ass'n, 44 Fla. 815, 33 So R. 447. Notice of the entry of this appeal was filed with the Clerk of the Circuit Court on April 30, 1928, well within the six months period provided by law from the entry of the…
-
Gibbs v. Ewing, 94 Fla. 236 (Fla. 1927)…ted with, or shown to result from, mistake, accident, surprise, misconduct, fraud, or irregularity. Marsh v. Marsh, 72 Fla. 142, 72 So. 638; Lawyers Coop. Pub. Co., v. Bennett, 34 Fla. 320, 16 So. 185. See also in this connection Phillips v. Howell, 81 Fla. 380, 88 So. 126; Peoples Realty Co. v. Southern Colonization Co., 78 Fla. 628, 83 So. 527; Welborn v. Welborn, 47 Fla. 348, 36 So. 61. Appellants cite the case of Stribling v. Hart, 20 Fla. 235. In that case, after a decree pro oonfesso had been taken,…1 / 2
Authorities Cited
- Cnty. Comm'rs of Franklin Cnty. v. State ex rel. Geo. A. Patton, 24 Fla. 55 (Fla. 1888)
- Gasque v. Ball, 71 Fla. 257 (Fla. 1916)
- Willingham v. State, 21 Fla. 761 (Fla. 1886)
- The Jacksonville St. R.R. Co. v. Walton, 42 Fla. 54 (Fla. 1900)
- Peoples Realty Co. v. S. Colonization Co., 78 Fla. 628 (Fla. 1919)
- Roebuck v. Batten, 64 Fla. 424 (Fla. 1912)