O. H. THOMASON, APPELLANT,
v.
W. A. JERNIGAN, CLAIRE C. JERNIGAN, RANDOLPH PRITCHETT, MARTHA MAE PRITCHETT, CITY OF CRESTVIEW, COUNTY OF OKALOOSA, ORSBIA GOODWIN, GERTRUDE GOODWIN AND SOUTHEASTERN GUARANTEED TITLE INSURANCE COMPANY, APPELLEES
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.
Appellant sought to foreclose a tax lien certificate and obtained a decree pro confesso against defendants for failing to answer. The defendants moved to vacate the decree, but the court found their grounds legally insufficient and reversed the trial court's order vacating the decree.
The trial court erred in vacating the decree pro confesso. The stated grounds do not constitute a legal basis for setting aside a regularly entered decree pro confesso. A meritorious defense is immaterial where no legal excuse is shown for failure to comply with procedural rules.
“The power to set aside a regularly entered decree pro confesso rests upon the exercise of sound judicial discretion.”
Establishes the standard for reviewing decisions to vacate default decrees
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn October 14, 1961, summons was served on defendants W. A. Jernigan and Claire C. Jernigan. On May 10, 1962, a decree pro confesso was entered agains…
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 Motion To Vacate Default Judgment cases and more on FLexlaw
The appellant, plaintiff below, seeks re-view of an interlocutory order vacating a decree pro confesso entered against W. A. Jernigan and Claire C. Jernigan, defendants below, in a suit to foreclose a tax lien certificate upon real property in the city of Crestview, Okaloosa County, Florida. The defendant appellees have not favored this court with a brief in response to the brief of appellant and to that extent both the court and the appellees are handicapped unless, as it may be, the appellees adopt the position that the less said about it the better.
On October 14, 1961, summons ad respondendum was served on defendants Jernigan and on May 10, 1962, decree pro confesso was entered against them for want of answer or other pleading. On June 14, 1962, said defendants moved to vacate said decree pro confesso and tendered therewith an answer to the complaint which alleges no material facts that might not have been pleaded within the 20-day period from date of service allowed by the rule for answering the complaint in due course. The grounds stated in support of the motion to vacate the decree pro confes-so are (1) that process upon defendant W. A. Jernigan was procured in his absence by service upon his wife, defendant Claire C. Jernigan, (2) that the plaintiff (appellant) was concurrently attempting to perfect service upon other defendants in said cause who would not be required to answer the complaint until subsequent to the filing of said motion, so that plaintiff would not be prejudiced by the granting thereof, (3) that plaintiff permitted the case to lie dormant for many months before obtaining said decree pro confesso, and (4) that the property involved is valuable. Assuming these allegations to be true, they do not constitute a legal basis for the entry of the order appealed. Parenthetically, there is nothing to indicate that the appellees will be precluded from an opportunity in due course to redeem the property from the lien of the tax certificate in foreclosure.
The power to set aside a regularly entered decree pro confesso rests upon the exercise of sound judicial discretion. Unless the grounds of the application to open a default are evident on the face of the record, they should be supported by an affidavit of merit made by the applicant himself (People’s Ice Co. v. Schlenker *907(1892), 50 Minn. 1, 52 N.W. 219; and where no legal excuse is shown for failure to comply with the rules, the fact that a meritorious defense exists is immaterial. Karnes v. Ramey (1926), 172 Ark. 125, 287 S.W. 743, 744. Statements of counsel, without more, as is the case here, are insufficient to support such an application. Davis v. Teachnor (Ohio App.1943), 53 N.E.2d 208, 212.
Finding nothing in the motion to vacate or in the record to indicate that there was any irregularity in the service of process or in the proceedings leading to entry of the decree pro confesso, and no good cause being shown in support of the unverified motion, the order setting aside the decree pro confesso is without lawful basis. White v. Spears (Fla.App.1960), 123 So.2d 689; Chaney v. Headley (Fla.1956), 90 So.2d 297.
The order appealed is hereby vacated.
Reversed.
WIGGINTON, Acting C. J., and RAWLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fla. Inv. Enters., Inc. v. The Ky. Co., Inc., 160 So. 2d 733 (Fla. 1st DCA 1964)…yes is affirmed. Affirmed in part, reversed in part. STURGIS, C. J., and WIGGINTON, J., concur. . North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 853 (Fla.1962). . Waterson v. Seat and Crawford, 10 Fla. 326 (1863). . Thomason v. Jernigan, 146 So. 2d 905 (Fla.App.1st, 1962). . Ledwith v. Storkan, 2 F.R.D. 539 (D.C. Neb.1942). . Wolfsohn v. Raab, 11 F.R.D. 254 (D.C.Pa.1951). . Weller v. Socony Vacuum Oil Co. of N. Y., 2 F.R.D. 158 (D.C.N.Y.1941). . United States, for use of Kantor Bros., Inc. v.…
-
Metcalf v. Langston, 296 So. 2d 81 (Fla. 1st DCA 1974)…of argument only that the aver-ments are sufficient — and it is elementary that a motion is not and of itself proof of the averments therein contained.” (53 So. 2d at pages 118 and 119) [*85] This Court, in Thomason v. Jernigan, Fla.App. (1st) 1962, 146 So. 2d 905, reviewing an order vacating a decree pro confes-so in an equity action, said: “ * * * Unless the grounds of the application to open a default are evident on the face of the record, they should be supported by an affidavit of merit made by the appl…
-
Dade Cnty. v. Lambert, 334 So. 2d 844 (Fla. 3d DCA 1976)…fault was made ore tenus at time of trial; it contained a mere allegation of a meritorious defense and excusable neglect for Laster’s failure to answer. This is insufficient basis upon which to vacate the default. Thomason v. Jernigan, Fla.App.1962, 146 So. 2d 905; Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So. 2d 107; Empire Electric Co. v. R. J. Hunt Construction Co., Inc., Fla.App. 1972, 264 So. 2d 114. The appellant-County also complains of failure to give it notice of default taken against Last…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Angell M. White and Anna White v. Spears, 123 So. 2d 689 (Fla. 3d DCA 1960)
- Chaney v. Headley, 90 So. 2d 297 (Fla. 1956)