Macfarlane v. Dorsey

49 Fla. 341 | Fla. | 1905

Shackleford, J.,

(after stating the facts.)

Four errors are assigned, but, as they are all based upon the granting of the interlocutory order appealed from, it is not necessary to consider them in detail.

The case of Friedman, Keiler & Co. v. Rehm, 43 Fla. 330, 31 South. Rep. 234, is directly in point. In that case we held that “A final decree rendered in pursuance of a previous decree pro confesso> may be set aside after the lapse of the period of twenty days from its entry, whereby it has become absolute under section 1446 of the Revised Statutes of 1892, but an application to set aside such a final decree after the expiration of twenty days from its entry should never he entertained from a mere desire to let in a defence on the merits, but only where strong and unavoidable circumstances exist, excusing failure to answer at the proper time,” first headnote. Also see the second and fifth headnotes and Stribling v. Hart, Executrix, 20 Fla. 235. An inspection of the motion filed by the appellees to set aside the final decree in the instant case discloses that there was a signal failure on the part of the appellees to comply with the requirements laid down by this court in the two cited cases. No showing whatever was made by the appellees that they had any meritorious defence which they were prevented from interposing “by causes beyond their control, and by obstacles insuperable in their character,” that there was any “deceit, surprise or irregularity in obtaining the decree.” or that the appellees had acted “with reasonable diligence,” and they further failed to exhibit their proposed answer or even to give any intimation as to what the facts were which constituted their defence.

The final decree was rendered on the 14th day of April, 1904, and yet the appellees took no steps toward having the same set aside until the 20th day of July of that year, after the property had been advertised and sold by the master, no reason being made to appear for this long delay. The transcript fails to disclose that any demurrer was- interposed by the appellees on the 4th day of April, 1904, as set forth in the third ground of their motion to set aside the final decree, but, even if the transcript showed the filing of.such demurrer, it would be unavailing for the reason that the appellees were allowed only until the rule day in the preceding February in which to answer and for the further reason that a decree pro confesso had been entered against the appellees on the rule day in February, more than two months before the alleged filing of the demurrer. The transcript further fails to show that the decree pro confesso was improperly or irregularly entered against the appellees, as is contended in the second ground of their motion. On the contrary, the final decree expressly states that “a decree pro confesso had been regularly entered” against the appellees, and, in the absence of any showing to the contrary, we must take this to be true. It is not made to appear that the dismissal of the cross-bill by the appellant as to the other cross-defendants in any way prejudiced the rights of the appellees. They had filed no answer to the cross-bill, and, moreover, the final decree expressly recites and recognizes such dismissal. The case of Long v. Anderson, 48 Fla. ......, 37 South. Rep. 216, is not in point.

It is true, as was said in Dorman v. McDougald, 47 Fla. ......, 36 South. Rep. 52, that “upon appeal by complainant from an order setting aside a decree pro confesso, and permitting the filing of an answer, if the bill be without equity the order will not be reversed, but the bill will be dismissed without prejudice.” This brings us to the consideration of .the first ground of the appellee’s motion to set aside the final decree.

The only contention made here by the appellees as to the cross-bill being without equity is that it contains an allegation to the effect that appellant had obtained a judgment against J. H. Dorsey, one of the appellees, had caused an execution to be issued thereon and levied upon the lands described in the cross-bill as the property of the said J. H. Dorsey, and that the same had been sold at a sheriff’s sale, at which M. B. Macfarlane was the purchaser, therefore, the appellant had no further interest in said lands and could not maintain his cross-bill. This position is untenable for the reason that the cross-bill expressly alleges that the title to said lands was held by Emily C. Dorsey, the other appellee, therefore, said levy and sale and the execution of a deed by the sheriff were . all nullities and vested no title in the purchaser, M. B. Macfarlane. See Robinson v. Springfield Company, 21 Fla. 203, sixth headnote; Mayer Bros. v. Wilkins, 37 Fla. 244, text 255, 19 South. Rep. 632; Wilson v. Matheson, 17 Fla. 630, text 642. It follows that this assault upon the cross-bill for want of equity must fail, and, therefore, that the case of Dorman v. McDonald, supra, has no applicability.

The interlocutory order appealed from must be reversed, and it is so ordered, at the cost of the appellees, and the case is remanded for such further proceedings as may be in accordance with equity practice and consistent with this opinion.

Whitfield, C. J., and Carter, J., concur. Taylor, Hocker and Cockrell, JJ., concur in the opinion.