MARY E. SYDNEY, A FEME SOLE, APPELLANT,
v.
AUBURNDALE CONSTRUCTION CORPORATION, A FLORIDA CORPORATION, ZETA L. BRISTOL AND O. M. BRISTOL, HER HUSBAND, APPELLEES
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Sydney brought a foreclosure action against Auburndale Construction Corporation and the Bristols, obtaining a decree pro confesso and final decree. The defendants moved to vacate the decree and set aside the final decree beyond the twenty-day period specified in Equity Rule 45, and the chancellor granted the motion. The Florida Supreme Court affirmed, holding that while the motion must be filed within twenty days, it may be disposed of within a reasonable time thereafter at the chancellor's discretion.
The chancellor acted within his discretion. While the motion to vacate must be made and filed within twenty days after entry of the final decree, it may be disposed of within a reasonable time beyond the twenty days at the chancellor's discretion, in accordance with Section 4945 of the Compiled General Laws of Florida.
“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.”
Establishes that the discretion to set aside a decree pro confesso rests with the chancellor based on the particular circumstances of each case.
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Join FLexlaw to unlock all legal intelligenceSydney sued the defendants to foreclose a mortgage. A decree pro confesso and final decree were entered against the defendants on December 1, 1927. On…
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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 twenty 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 Sec. 4945, Compiled General Laws of Florida, 1927 (Sec. 3158, Rev. Gen. Stats, 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 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 ¿nal decree.”
In fine, the appellant contends that by the terms of Equity Rule 45 the motion to vacte the decree pro confesso and set aside the final decree must be made and disposed of by the chancellor within twenty days unless additional time is allowed, while appellees contend that by the terms of Sec. 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 twenty days but that it may be disposed of within a reasonable time before or after the lapse of the twenty days in the discretion of the chancellor. 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. Sutton v. Zewadski, 60 Fla. 379, 70 So. R. 433; Strickland v. Jewel, 80 Fla. 221, 85 So. R. 670.
The record here discloses that the motion to vacate the decree pro confesso and set aside the final decree was made within the twenty-day period, that while it was not disposed of in the twenty days it was disposed of within a reasonable time beyond the twenty days and that on its face it purports both diligence and a meritorious defense. The Legislature has no power to prescribe rules regulating the conduct of the court’s business or other matters within the inherent power of the court to regulate. Webber v. Blanc, 39 Fla. 224, 22 So. R. 655; Bryan et al., v. State, 94 Fla. 909, 114 So. R. 773. We do not think that Sec. 4945, Compiled General Laws of Florida, infringes on this rule but on the other hand it deals with a question subject to legislative regulation.
The motion to vacate the decree pro confesso and set aside the final decree was made and disposed of in conformity to law, so the decree of the chancellor is affirmed. Encyclopedia of Pleading and Practice, Vol. 18, p. 1239, Sec. 4682, Compiled General Laws of Florida. (Sec. 2955, Rev. Gen. Stats, of Florida.)
Affirmed.
Whitfield, P. J., and Buford, J., concur. Ellis, C. J., and Strum and Brown, J. J., concur in the opinion and judgment.
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Fla. Med. Ctr., Inc. v. von Stetina, 436 So. 2d 1022 (Fla. 4th DCA 1983)…4). It is also settled that “[t]he legislature has no power to prescribe rules regulating the conduct of the Court’s business or other matters within the inherent power of the Court to regulate”. SYDNEY v. AUBURNDALE CONSTRUCTION CORP., 96 Fla. 688, 119 So. 128, 129 (1928). Since both of these propositions are settled, it is clear that § 768.541 is unconstitutional — because it attempts to [*1026] limit this Court’s inherent power to enforce the judgments entered in this case. The statute also violates bo…
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In re Petition of Fla. State Bar Ass'n for Promulgation of New Fla. Rules of Civil Procedure, 145 Fla. 223 (Fla. 1940)…this statute, and has accepted the principle that the rules promulgated by it shall not be inconsistent with law. See also in this collection State ex rel. Ross v. Call, 39 Fla. 504, 22 So. 748; Sydney v. Auburndale Construction Corp., 96 Fla. 688, 119 So. 128; Ruff v. S. & F. Ry. Co., 67 Fla. 224, 64 So. 782; State ex rel. Fisher v. Rowe, 110 Fla. 141, 148 So. 588; Alaska Packers Association v. Pillsbury, 301 U. S. 174, 57 S. C. 682, 81 L. Ed. 988, and Bull v. Adams (C. C. A.), 17 Fed. (2d) 906, opinion…
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Mil. Park Fire Control TAX Dist. NO. 4 v. DeMAROIS, 407 So. 2d 1020 (Fla. 4th DCA 1981)…e courts may not be exercised by the legislature. Art. II, § 3, Fla.Const. Thus it has been held that a statute which purports to create or modify a procedural rule of court is constitutionally infirm. Sydney v. Auburndale Const. Corp., 96 Fla. 688, 119 So. 128 (1928); Johnson v. State, 308 So. 2d 127 (Fla. 1st DCA 1975), aff’d., 346 So. 2d 66 (Fla.1977); Markert v. Johnston, 367 So. 2d 1003 (Fla.1978). A rule of procedure prescribes the method or order by which a party enforces substantive rights or obta…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Webber v. Blanc, 39 Fla. 224 (Fla. 1897)
- Strickland v. Jewell, 80 Fla. 221 (Fla. 1920)
- In re Docketing the Appeal in J. Nathan Bryan v. State, 94 Fla. 909 (Fla. 1927)