Ahearn v. Ahearn

168 So. 807, 124 Fla. 524, 1936 Fla. LEXIS 1159

• Court: Supreme Court of Florida
• Decided: June 12, 1936
• Status: Published

Opinions

Buford, J.

The appeal in this case brings for review an order entered by the Court below made on March 4, 1935, vacating a final decree entered December 10, 1934, and a decree pro confesso entered October 1, 1934.

The order of court in that regard is as follows:

“C. E. Ahern v. Elsie Ahern. The foregoing motion coming on to be heard this day, after notice, upon consideration thereof, It Is Considered and Ordered that the Final Decree entered herein be, and the same is hereby vacated and set aside, and that the decree pro confesso heretofore entered against the defendant in this cause, be vacated and set aside, and the defendant is' allowed until the 1st day of April, 1935, in which to answer the Bill of Complaint.

“Done and Ordered at Chambers in Lakeland, Florida, this the 4th day óf March, A. D. 1935.

“H. C. Petteway, Circuit Judge.”

The recital in the order shows that notice of the hearing had been given and we are bound by that recitation. The motion to vacate alleged sufficient facts (if proved) to show that the court had never acquired jurisdiction to enter the decree pro confesso or the final decree against the defendant in that neither actual nor constructive service, as provided for by statute, had been accomplished. However, the certificate of the Clerk of the Circuit Court shows that a copy of the order was mailed to the defendant at the address stated in the affidavit attached to the bill of complaint which is the same address which the defendant alleges as her true address in the motion to vacate the decree pro confesso.

No testimony was taken to support the motion to vacate the final decree and decree pro confesso. The motion was made long after the final decree had become absolute under Section 43 of the 1931 Chancery Practice Act.

In the case of Friedman, et al., v. Rehm, et al., 43 Fla. 330, 31 Sou. 234, this Court speaking through Commissioner Glen, held:

“To authorize the granting of an application to set aside a final decree which has become absolute under Section 1446 of the Revised Statutes, for the purpose of permitting a defense to be interposed, it must be shown that there was deceit, surprise or irregularity in obtaining the decree, that the defendant acted bona fide and with reasonable diligence, that he has a meritorious defense, and that strong and unavoidable circumstances exist excusing the failure to answer at the proper time.”

This case has been cited with approval in McFarlane v. Darsey, 49 Fla. 341, 38 Sou. 512; Roebuck v. Batten, 64 Fla. 424, 59 Sou. 942; Turner v. Jones, 67 Fla. 121, 64 Sou. 502; and in Isler v. Slyke, 94 Fla. 1218, 115 Sou. 616.

The showings made for setting aside the final decree and the decree pro confesso after the final decree had become absolute, were not sufficient to warrant the entry of the order appealed from. Therefore, the order is reversed and the cause remanded without prejudice to the defendant in the court below, appellee here, to institute and maintain such ether and further proceedings as she may be advised are appropriate in the premises.

So ordered.

Whitfield, C. J., and Terrell and Davis, J. J., concur. Ellis, P. J., and Brown, J., dissent.