THE STATE OF FLORIDA ON THE RELATION OF: L. M. FLETCHER, PETITIONER,
v.
THE HONORABLE VINCENT C. GIBLIN, JUDGE OF TWENTY-SECOND JUDICIAL CIRCUIT IN AND FOR THE STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court granted a mandamus petition against a circuit judge who refused to enter a decree pro confesso against defendants served by publication. The Court clarified the proper procedure for entering such decrees under Florida law, holding that when the return day is not a rule day, the decree cannot be entered until the succeeding rule day.
A decree pro confesso may be entered by the court on the rule day succeeding a return day that is not a rule day, or on any subsequent date during the continuance of default. If the return day itself is a rule day, the court or clerk may enter the decree on that day or any subsequent day/rule day during the continuance of default.
“Where constructive service is had by publication upon a bill properly sworn to and alleging sufficient facts to give the court jurisdiction of the parties and of the subject matter, a decree pro confesso may be entered by the court against defendants in default on the rule day succeeding a proper return day other than a rule day named in the writ or on any date during the continuance of default thereafter, or may be entered by the clerk of the court on any rule day after such return day, during the continuance of such default”
The Court's corrected statement of the law regarding when decrees pro confesso may be entered in cases of constructive service by publication
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Buford, J.
This is an original mandamus proceeding brought against the Circuit Judge to require him to enter a decree pro eonfesso in a case in which he had made an order, as follows: 1 ‘ This cause came on this day before me upon the motion of complainant for the entry of a decree pro confesso against the defendants, Aug. E. Neff, Helen Neff, Fred G. Kaeding and Minnie Kaeding, Mary M. Lindermanc, Conrad Lindermane, Charles E. Bryant, also known as Charles E. Bryan, John Sander and Julia Sander. I do not believe that under Section 3153 of the Revised General Statutes of Florida (1920) a decree pro confesso can be entered against defendants served by publication, where the return day fixed in said order of publication is other than a rule day, until the rule day succeeding the day so fixed in the order of publication. In this case the return day is October 12, 1927, and in my opinion a decree pro confesso cannot be entered against the defendants until the Rule Day in November, A. D. 1927. I have, therefore, declined to enter a decree pro confesso against said defendants as presented to me.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, That said motion for decree pro confesso be and the same is hereby denied.
DONE AND ORDERED in Chambers in the City of Fort Lauderdale, Broward County, Florida, this 13th day of October, A. D. 1927.”
On the return day of the alternative writ the respondent moved to quash the same. In Tibbetts v. Olson, in an opinion by the present writer, 91 Fla. 824, 108 Sou. 679, this Court say:
“Where constructive service is had by publication upon a bill properly sworn to and alleging sufficient facts to give the court jurisdiction of the parties and of the subject matter, a decree pro confesso may be entered by the Court against defendants in default on a proper return day named in the writ or on any date during the continuance of default thereafter, or may be entered by the clerk of the court ou any rule day after the return day, during the continuance of such default.”
This statement is erroneous and, while in that case it was dicta, it should be corrected. The statement should have read:
The rule as last above stated applies in cases where the return day named in the order of publication for constructive service is other than a rule day. Where the return clay is a rule day the court or the clerk may on default and proper showing thereof, enter decree pro confesso on that day, or the court may enter decree pro confesso on any subsequent day during continuance of default, or the clerk may enter decree pro confesso on any subsequent rule day during continuance of default.
The motion to quash the alternative writ should be granted and it is so ordered.
Quashed.
Ellis, C. J., and Whitfield, Terrell, Strum and Brown, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Amylita G. Cole v. Cole, 146 Fla. 196 (Fla. 1941)…were clearly erroneous, because under the provisions of Section 6, supra, the defendant was not required to enter an appearance in said cause until May 6, 1940, the next succeeding rule day after April 8, 1940. See State ex rel. Fletcher v. Giblin, 94 Fla. 1084, 114 So. 778. Counsel for appellee contend that because the motion to vacate the decree pro confesso, the order of reference and thé final decree was not made within twenty days after the date of the entry of the final decree, and further because t…
Authorities Cited
- Johnson C. Tibbetts v. Atwell Olson, 91 Fla. 824 (Fla. 1926)
- Wilds v. State, 79 Fla. 575 (Fla. 1920)