46 Fla. 479 | Fla. | 1903
(after stating the facts.) — The power of the chancellor in this State to set aside a final decree rendered in pursuance of a previous decree pro confesso after the lapse of the period of twenty days from its entry, whereby it has become absolute under section 1446 of the Revised Statutes, is no longer an open question. Friedman v. Rehm, 43 Fla. 330, 31 South. Rep. 234; Stribling v. Hart, 20 Fla. 235. It is equally well settled by these decisions that the power is one to be exercised only when there exists strong grounds calling for the annullment of the previous solemn decree of the court, 'and when the conduct of the party applying for such relief is entirely free from well grounded imputation of laches.
Were these defendants free from this fault? As illustrating his subsequent acts, it may be noted that the filing of the bill had been deferred for months that White might adjust with the complainant the amount due on the mortgage debt, which he seems to have made, no effort to do. The suit was finally instituted late in the month of July, with the understanding that without waiting for the second rule day thereafter he would fiie his answer setting up the disputed credits which he claimed, and speed the cause. This was not done, and at the expiration of the full time allowed b}'- law for the filing of the answer he was s'till unprepared and asked two weeks’ extension. This extension was granted, not for the interposition of any line of defense which he might elect to pursue, but. for the filing of the answer setting up the disputed claim of credits to be allowed on the mortgage debt. That this was the full extent of the concession made, appears from the correspondence asking and granting the extension, from the defendant’s subsequent acquiescence in the right of complainants’ attorneys to refuse to file for him an answer not within the spirit of the agreement, and from the final order of the court which, in permitting the answer to be filed only as to the amount due
In apparent recognition of this, the defendants ignored both their demurrer and motion to vacate the decree pro confesso and obtained a further grant of time in which to file an answer along the lines previously agreed upon.
In January following, no answer having been filed, a final decree was entered against the defendants, and the property was advertised for sale on the fourth day of February. Without questioning in any manner the regularity or validity of'this decree, the attorneys for the defendants then made with complainants’ attorneys an agreement that the sale should not be confirmed for thirty days, during which time the decree might be satisfied by payment and,the sale set aside, and another agent of the defendants made an agreement that the complainants should bid in the property for the amount of the decree. The authority of the attorneys to make the first agreement is questioned by the defendants, but they ratified both agreements and based upon them a motion that the sale be set aside, which motion was granted upon condition by the court. Some months thereafter the motion to set aside the decree pro confesso and subsequent proceedings based thereon was made. The motion should have been denied. The defendants had not availed themselves of the concessions granted by the complainants, and were at no time within the terms of the agreements made. Then, with full knowledge of all the facts and
A further objection lay to the granting of the motion. The decree was vacated merely in order that the defendants might defend as to the amount due under the mortgage. The answer tendered by the defendants shows that several years before the institution of this suit a settlement was had between the parties to determine this amount and a note was given for the sum determined upon, by the defendant White who was not the original mortgagor but a purchaser of the mortgaged property, and that this sum is the basis of the present claim, and that the complainant has obtained judgment against White upon this note. The only allegations in the answer to break the force of this judgment are that in making the settlement the complainants misrepresented to the defendant the amount due on the notes secured by the mortgage, and that when the suit upon the note given by him was instituted he was ignorant of that fact. It does not deny that he had knowledge of the facts in time to have availed himself of them in defending the suit upon the note, nor does it offer any explanation why the defendant, apparently an educated man of affairs, should be dependent upon the complainant for information either as to the notes secured by the mortgage and set forth at large therein, or as to the amount which he had paid thereon. The answer, as to White at least, tends rather to show that the claim of disputed credits was already res adjudicata when the foreclosure suit was instituted, than that the defendant should have further opportunity of litigating the question.
The order of the court beloAv vacating and setting aside