H. S. EBERLE AND MRS. A. M. EBERLE, JOINED BY HER HUSBAND AND NEXT FRIEND, H. S. EBERLE, APPELLANTS,
v.
MARION WILSON, APPELLEE
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The Florida Supreme Court reversed an order that had vacated a final decree, holding that the lower court lost jurisdiction to modify the decree after six months had passed. This case clarifies the finality of court decrees after a specified period.
No, the lower court did not have the authority to vacate the final decree after the six-month period had passed because the decree had become absolute and beyond the court's control.
“At the expiration of six months from the date of the entry of the final decree, such decree which had already become absolute, could not then be corrected either by appeal or by order of the Circuit Court.”
Establishes the court's reasoning regarding the finality of decrees after six months.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA final decree was entered in the lower court on March 12, 1927. On September 17, 1927, more than six months later, the lower court entered an order v…
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Buford, J.
In this case decree pro confesso was entered August 2, 1926. Testimony was taken December 30, 1926. Report of Special Master was filed March 2, 1927. Final decree was entered March 12, 1927. A motion to vacate decree pro confesso, the order appointing a Special Master and final decree was filed September 17, 1927, and on that date an order was made vacating the decree pro confesso the Order appointing a Special Master and the final decree, from which Order appeal was taken.
It will be observed that the order vacating the final decree and other orders referred to was made more than six (6) months after the entry of the final decree.
It appears that the entry of the decree pro confesso was irregular but was not void. It also appears from the record that the final decree was based upon testimony taken after the time was expired and that therefore the entry of this decree was error, but the decree was not void. See Woodward v. Woodward, 95 Fla. 396, 116 So. R. 501.
At the expiration of six months from the date of the entry of the final decree, such decree which had already become absolute, could not then be corrected either by appeal or by order of the Circuit Court. Mabson v. Christ, 119, So. R. 131.
The decree by the passage of time, that is by the passage of a period of more than six months from the date of its entry in the proper court records had passed beyond the control of the Court.
For the reasons stated, orders appealed from should be reversed and it is so ordered.
Reversed. Whitfield, P. J., and Strum, J., concur. Terrell, C. J., and Ellis and Brown, J. J., concur in the opinion and judgment.
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Scheuermann v. Shamas, 97 So. 2d 314 (Fla. 3d DCA 1957)…55, 81 So. 2d 731, 732. See, also, Houk v. Dade County, Fla.1957, 97 So. 2d 272. The final decree of March 28, 1955, became absolute when the time allowed for rehearing elapsed. Mabson v. Christ, 96 Fla. 756, 119 So. 131, 132-133; Eberle v. Wilson, 97 Fla. 384, 120 So. 851; and Pace v. Pace, 99 Fla. 859, 128 So. 488, 489. The court was without jurisdiction to grant the order, four months after the final decree, opening the case for further litigation of the fee question, and that order was a nullity. Atw…
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Bartlett & Sons Co. v. Pan-American Studios, Inc., 144 Fla. 531 (Fla. 1940)…v. Mason, 61 Fla. 692, 55 So. 387; Charlotte Harbor & N. R. Co. v. Lancaster, 70 Fla. 200, 69 So. 720; Nail v. Browning, 74 Fla. 108, 76 So. 697; Buck v. All Parties, 86 Fla. 86, 97 So. 313; Reed v. Cromer, 86 Fla. 575, 98 So. 605; Eberle v. Wilson, 97 Fla. 384, 120 So. 851; [*533] Beachland Development Co. v. Peterson, 123 Fla. 145, 166 So. 323. It is next contended that one of the orders appealed from dated October 2, 1939, which corrected nunc pro tunc the date of the entry of the final decree from Jan…
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McCaskill v. Graham, 125 Fla. 418 (Fla. 1936)…r the time has expired to appeal from a final decree does not bring for review the final decree or any decrees entered prior thereto. Ocean Frontage Co. v. McFadden, 98 Fla. 197, 123 So. 666; Dees v. Cook, 58 Fla. 420, 51 Sou. 138; Eberle v. Wilson, 97 Fla. 384, 120 Sou. 851; Elder v. Hall, 98 Fla. 954, 124 Sou. 466. The only order or decree shown by the record which was entered within six months of the date of the filing of the notice of appeal was the order confirming the sale which included the denial…
Authorities Cited
- Woodward v. Woodward, 95 Fla. 396 (Fla. 1928)