GIUSEPPE BONGIOVANNI
v.
ANGELA V. SPOTO, ET AL.
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The Florida Supreme Court affirmed a lower court's decision to deny a mortgagor's motion to open a decree pro confesso in a mortgage foreclosure case, holding that the lower court did not abuse its discretion.
No, the Chancellor did not abuse his discretion in denying the motion to open the decree pro confesso. The court found that the propositions of fact relied upon by the defendant were sharply controverted, and the setting aside of such a decree rests within the sound discretion of the court.
“While the motion to open up the decree pro confesso presented matters upon which the Court, in the exercise of its discretion, may have been warranted in letting in an answer, yet the propositions of fact relied upon as the basis for such motion were sharply controverted, and this Court cannot say on this appeal that the discretion of the Chancellor was abused in denying what defendant below prayed.”
This quote explains the court's reasoning for not finding an abuse of discretion, highlighting the controverted facts and the discretionary nature of opening a decree pro confesso.
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Join FLexlaw to unlock all legal intelligenceThe mortgagor received personal service in a mortgage foreclosure case but failed to file an answer or other defensive pleading. A decree pro confesso…
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This was a mortgage foreclosure case in which the mortgagor appeals from the final decree, assigning' as the principal error to be argued, the refusal of the Chancellor to open up a decree pro confesso entered after personal service and failure to file answer or other defensive pleading subsequent to entry of appearance.
While the motion to open up the decree pro confesso presented matters upon which the Court, in the exercise of its discretion, may have been warranted in letting in an answer, yet the propositions of fact relied upon as the basis for such motion were sharply controverted, and this Court cannot say on this appeal that the discretion of the Chancellor was abused in denying what defendant below prayed.
The setting aside of a decree pro confesso rests in the sound discretion of the court to be exercised according to the circumstances of each case. Weathersbee v. Dekle, 102 Fla. 1057, 136 Sou. Rep. 708. It cannot be said in this case that reversible error was committed by the Chancellor, who evidently followed the rule laid down in the case just cited, when he denied defendant’s motion to open up the decree pro confesso after final decree had been entered and the property was being advertised for sale.
Other matters argued by appellant have been considered, but no reversible error has been made to appear as to any of them within the purview of the rule stated by us as to grounds for reversal of foreclosure decrees. See Tunniclifife v. Volusia County Bond & Mtge. Co., 103 Fla. 750, 137 Sou. Rep. 885.
*146Affirmed.
Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gossett v. Ullendorff, 114 Fla. 159 (Fla. 1934)…ding on the facts averred which the complainant sought to have stricken. Usually the setting aside of a decree pro confesso rests In the court’s sound discretion to be exercised according to the circumstances of each case. See Bongiovanni v. Spoto, 111 Fla. 144, 149 Sou. Rep. 10. In the case at bar the circumstances in which the decree was entered, even if the clerk was authorized to enter it, were of such character that a refusal to set the order aside ■constituted an abuse of the discretion. The answer…
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Mikesell v. Mikesell, 137 Fla. 108 (Fla. 1939)…scretion of the chancellor, and the same will not be set aside unless an abuse of that discretion is shown. See Gossett v. Ullendorff, 114 Fla. 159, 154 South. Rep. 177; Weathersbee v. Dekle, 102 Fla. 1057, 136 South. Rep. 708; Bongiovanni v. Spoto, 111 Fla. 144, 149 South. Rep. 10. For these reasons, I am unable to concur in the opinion of a majority of the Court. Terrell, C. J., concurs.…
Authorities Cited
- Abbey v. Abbey, 102 Fla. 1141 (Fla. 1931)
- Weathersbee v. Gus J. Dekle, 102 Fla. 1057 (Fla. 1931)
- Tunnicliffe v. Volusia Cnty. Bond & Mortg. Co., 103 Fla. 750 (Fla. 1931)