65 Fla. 305 | Fla. | 1913
As is set forth in the opinion in Dees v. Cook, 58 Fla. 420, 51 South. Rep. 138, Henry C. Cook filed his hill in chancery against William T. Dees and other named defendants for the purpose of removing clouds upon the title to certain described real estate. A final decree was rendered in favor of the complainant, which we reversed upon appeal for the reason that it appeared in the transcript that while the cause was still pending the complainant had sold and conveyed by warranty deed the real estate described in the bill to J. Henry Cochran. After the going down of the mandate from this court, J. Henry Cochran filed what he designated an “amended bill in the nature of a supplemental bill,” making defendants thereto all the parties who were made defendants in the bill filed by Cook. All of the defendants united in interposing a demurrer to the bill, which was overruled and the defendants allowed until a certain day in which to plead or answer. Two of the defendants, Samuel C. Lukens, trustee, and Lukens .Gulf Cypress Company, a corporation, filed a plea, within the time named, which plea was overruled and the two defendant® were allowed until the Rule day in August, 1912, “to further answer as they may be advised.” On the 17th day of July, 1912, these two defendants filed another plea, which, omitting the caption, is as follows:
“These defendants by protestations, not confessing or acknowledging all or any of the matters and things in said bill contained to be true in such manner and form as the same are therein and thereby set forth and alleged, doth each of them plead thereunto, and for plea to said bill says that the prayer thereof should not be granted because the said complainant, J. Henry Cochran, is deceased, having departed this life since the filing his amended bill in the nature of a supplemental bill, and*307 further says that the prayer of said bill should not be granted because William T. Dees is deceased, having departed this life since the bringing of this’action. That the defendants, Samuel C. Lukens, trustee, and Lukens Gulf Cypress Company, two of the defendants in the amended bill, in the nature of a supplemental bill, do not know who are the heirs at law or the legal representatives of the said William T. Dees. And further say that the prayer of the said bill should not be granted because Henry C. Cook is the real complainant in said bill and is conducting the prosecution, and employing counsel to prosecute this cause in his behalf and that neither the said J. Henry Cochran or his heirs are prosecuting this action, and the courts have held in this suit heretofore that Henry C. Cook was not a proper party to said action and had no interest therein.”
On the 5th day of. August, 1912, the counsel for the complainant filed a praecipe for a decree pro-confesso against such two defendants “for failure to file an answer, properly verified and sworn to, before the Rule day in August, A. D. 1912, in accordance with the order of the court handed down on June 11th, A. D. 1912.” On the same day, which was the Rule day in August, the Clerk of the Circuit Court entered a decree pro-confesso against such two defendants' for failure to file and answer, in accordance with the request in the praecipe. On the 7th day of October, 1912, such two defendants filed a motion “for an order to set aside the decree pro-confesso,” which motion was denied by the court on the 9th day of October, 1912, and from which interlocutory order such two defendants, Lukens Gulf Cypress Company, a corporation, and Samuel C. Lukens, trustee, have entered their appeal. We do not copy the grounds of the motion or the affidavits filed by the respective parties and used at the hearing for