Joseph L. Friedman and John W. Keiler, Partners as Friedman, Keiler & Co., Appellants, vs. Herman Rehm and R. W. Simms, Appellees, 43 Fla. 330

Glen, C., (After stating the facts.) Counsel for appellants in his brief concedes that under the decision of Stribling v. Hart, Executrix, 20 Fla. 235, the chancellor has power, upon a proper showing, to set aside a final decree consequent upon a decree pro confesso, after twenty days from the entry of the final decree,-for the purpose of permitting a defence to be interposed,and asserts that the only question for review is whether the circumstances presented by the record in this case justified the exercise of that power.

It appears that the bill was filed in the court below on June 4th, 1895, and that appearance was filed on July 1st, 1895. It also appears that the defendants filed affidavits in July, 1895, for the purpose of resisting an application on the part of complainant for the appointment of a receiver. The final decree recites that a decree pro confesso had theretofore been regularly entered. On September 12th, 1893, the motion was made to set aside the decree pro confesso and final decree.

That motion was made and filed more than twenty days after the rendition and filing of the final decree, and hence, after the final decree had become absolute under

section 1446 of the Revised Statutes. That

section is substantially the same as Rule 45' of the rules of practice in equity, construed by the court in Stribling v. Hart, Executrix, supra, and. in the opinion of the court should receive the same construction as that placed upon the rule, viz: that it does not preclude the court from setting aside a final decree upon a decree pro confesso, after the lapse of twenty days, for the purpose of permitting a defence upon the merits, under the circumstances stated in that case. The exercise of this power, however, should be confined strictly to the limits announced in Stribling v. Hart, Executrix.

As is said in that case, “decrees are not lightly to be disturbed or vacated after enrollment, though entered upon default of the defendants, and it is only where there are strong and special circumstances shown and the conduct of the party applying- is entirely free from well grounded imputation of laches or mala ñdes that his application will be entertained and the discretion of the court exercised in his favor, and the discretion to be exercised upon such application must be regulated by law and precedent and not a mere desire to let in a defence upon the merits. * * * * The facts produced must show deceit, surprise or irregularity in obtaining the decree and that the defendant has acted bona ñde and with reasonable diligence.” A final decree of this character, after it has become absolute under the statute, should never be set aside merely because the applicant has a meritorious defence.

Without strong and unavoidable circumstances excusing- the failure to answer the decree should not be disturbed. The court Has a very limited discretion in passing upon such applications, and “the facts established must show deceit, surprise or irregularity in obtaining- the decree, that the defendant has acted bona ñde, and.with reasonable diligence, and has a meritorious defence,” before such a decree is set aside. Applying- these rules to the present case the action of the court below in setting aside the decree rendered on August 17th, 1895, was clearly erroneous.

The grounds of the motion for. setting aside the decree pro Confesso were (1) that the case was not ripe for a decree because affidavits had been filed by both defendants on July 15th, 1895; (2) that the affidavits of defendants filed in resistance of the application for receiver precluded the entry of a decree pro confesso; (3) that counsel supposed no action would be taken until the court passed upon the application for receiver ; and (4) that there was a mutual misunderstanding between defendants'' solicitors by which each expected the other to file the answers of defendants.

The motion also asserted as grounds for setting aside the final decree (1)' that the case had never been sent to a master to take proofs; (2) that it had never been set down for hearing on bill and answer; and (3) that the affidavits afforded a complete and adequate defence until overcome by testimony.

It will be observed that all the grounds of both motions assert errors of law in the entry of the respective decrees, except the third and fourth grounds of the motion to set aside the decree pro confesso, which assert, respectively, that counsel supposed no action would be taken until determination of the application for receiver, and that there was a mutual misunderstanding between defendants’ solicitors as to the filing of the answers. Certainly neither of these grounds authorized the setting aside of the decree. Stribling v. Hart, Executrix, supra; Rust v. Lynch, 54 Md. 636.

The other two grounds of the motion to set aside the decree pro confesso, and the third ground of the motion to set aside the final decree, were based upon the alleged presence in the record of affidavits on the part of the defendants, Rehm and Simms, filed in resisting the application for a receiver, which, it was asserted, precluded the entry of a decree pro confesso or final decree; but such affidavits filed' by the defendants for the purpose stated, could not serve the purpose of formal answers to the bill so- as to preclude the entry of a decree pro confesso.

That they were not intended to do so is shown by the motion itself, in its allegation, duly verified, that answers were not filed by reason of the mutual misunderstanding of the defendants’ solicitors. The first and second grounds of the motion to set aside the final decree are without merit, and need not be further considered.

The allegations of fact in the bill, which were admitted by the decree pro confesso, were sufficient to' warrant the final decree rendered on August 17th, 1895, in favor of appellants, and the order of October 7th, 1895, setting aside that final decree, and all proceedings subsequent thereto should be reversed and set aside. Hocker, C., and Maxwell, C., concur. Per Curiam.

The foregoing opinion has been examined by the court and is hereby approved and adopted and ordered to be filed as the opinion of the court in said cause. (Chief-Justice Taylor, on account of sickness in his family, did not participate in this decision.)