| Fla. | May 25, 1926
This cause is before the Supreme Court of Florida on appeal from an order made by the Chancellor reinstating the bill of complaint as to K. R. Murrell, Jr., after the same had been dismissed because of failure of the *1008 complainants to comply with Rule of Practice number fifty-five (No. 55).
It is contended by appellant that the order made by the Court reinstating the bill of complaint as against Murrell was invalid because notice of application for such order had not been given as required by the rules of Court and by Section 3133, Revised General Statutes of Florida.
If the facts are as stated by appellant, then the order reinstating the cause should be vacated. The record does not affirmatively and positively show whether the notice was actually served or not and therefore this Court is bound by the language used by the Chancellor in making the order reinstating the cause. This order recites: "This cause coming on to be heard, and it appearing that due notice of time and place has been given Mr. Murrell, solicitor for defendant, and he not appearing to resist the motion, upon consideration it is ordered and adjudged that the said motion be and is hereby granted, the order dismissing as to the defendant K. R. Murrell be vacated and said cause reinstated, and the complainant allowed to set down the demurrer of said K. R. Murrell for argument."
No motion was made before the Chancellor to vacate the order of reinstating the cause and an affidavit filed among the case papers, after such order reinstating the cause was made by the Chancellor, cannot be considered by this Court.
In the absence of affirmative showing to the contrary this Court must assume that the recitals contained in the order of the Chancellor are based upon proof submitted to him.
If in fact no notice was served, as required by the rules of Court and the Statutes, of the presentation of the motion to reinstate the cause as to appellant Murrell, the appellant will not by the affirmance of the order be denied *1009 his right to make this showing before the Chancellor on a proper motion to vacate the order.
The order of the Chancellor is affirmed.
Affirmed.
WHITFIELD, P. J., AND TERRELL, J., concur.
BROWN, C. J., AND ELLIS, J., concur in the opinion.