Opinion
April 14, 1950.
Kelly Manly and John J. Nedza, Lakeland, for petitioner.
Oxford Oxford, Lakeland, for respondents.
The respondents, plaintiffs below, filed their bill of complaint in the court below against Joseph Sell, as defendant, alleging in substance that the respondent Rosa Sell Hamby, at the request of Joseph Sell, her father, had on July 12, 1937, sold certain real estate in Tennessee to which she held the fee simple title and in which Joseph Sell had a life estate, with the understanding that the money derived from this sale would be used to pay up the taxes on and build a house on property in Florida owned by Joseph Sell in fee simple, in which the respondents and Joseph Sell would jointly reside, and that Joseph Sell would convey the fee simple title of the Florida property to the respondent Rosa Sell Hamby, subject to the right of Joseph Sell to occupy the property during his lifetime. The bill further alleged that the taxes on the Florida land were paid on July 21, 1937, that a house had been built thereon, and that the respondents and Joseph Sell have made their home in said house and the respondents have supported Joseph Sell since that time, but that Joseph Sell has persisted in deferring the execution of a conveyance of the Florida property to respondents, although he had not refused to do so. The prayer of the bill was that the property involved be declared to be the property of Rosa Sell Hamby, and such other and further relief as the Court might deem equitable and proper.
The bill of complaint was filed on March 31, 1947, service was had on the defendant Joseph Sell on April 1, 1947, and on April 2, 1947, an order was entered by the County Judge of Polk County recommitting Joseph Sell to the Florida State Hospital and authorizing and directing L.H. Hamby, one of the respondents herein, to transport Sell to the hospital, which order recited that Hamby had agreed to do so without expense to this State or County. The record shows that Joseph Sell was at this time 80 years of age and had originally been adjudged to be insane in February of 1944. He was at that time committed to the Florida State Hospital, and L.H. Hamby was designated as the guardian of his person. The record further shows that, on November 13, 1945, Sell was discharged officially from the Florida State Hospital "by virtue of being absent one year on furlough."
Shortly after the institution of the instant suit, on April 26, 1947, Joseph Sell died. Nonetheless, a decree pro confesso was entered against Joseph Sell on May 6, 1947. On May 30, 1947, upon the Suggestion of Death of the defendant filed by respondents, the Chancellor entered an order substituting Bessie Harrison, as Executrix of the Estate of Joseph Sell, as party defendant and ordering her to plead within fifteen days from the date of service of notice of such order. The record does not show that such notice was ever served on Bessie Harrison. Concurrently with the Suggestion of Death, above referred to, the respondents filed their Ancillary Petition, setting forth the fact of the death of Sell, the appointment of Bessie Harrison as Executrix of his estate, and alleging that the will offered for probate by Bessie Harrison was executed by Joseph Sell at a time when he had been legally adjudged insane, that Sell had been improperly induced to sign the will, that the property therein devised was his homestead, and that Bessie Harrison, as Executrix, had filed eviction proceedings in the County Court of Polk County against respondents. The prayer of the Ancillary Petition was that the Circuit Court "determine the legality of the will of Joseph Sell and the right of possession and ownership of the property involved in this suit" and that the County Court be prohibited from further trying the causes brought by Bessie Harrison. On the same day, the Chancellor entered an Order "cancelling" all causes pending between respondents and Bessie Harrison and taking full jurisdiction of the estate of Joseph Sell and of the property involved. The order also prohibited the County Judge's Court from further proceeding with the administration of the estate of Joseph Sell and with the eviction proceedings.
Here the matter rested for a period of approximately two years, the respondents, so far as this record shows, taking no further action in the cause. Then, on May 2, 1949, Bessie Harrison, as executrix of the estate of Joseph Sell, and the petitioner herein, filed several motions in the cause, seeking to set aside and vacate the several orders above referred to and to dismiss the bill of complaint. These motions were stricken by the Chancellor, on motion of the respondents, as being "improperly filed."
The petitioner thereupon, on June 6, 1949, filed a motion to set aside the decree pro confesso theretofore entered against Joseph Sell, for the reason that Sell was insane at the time suit was filed and service made upon him, and that he had departed this life at the time the decree pro confesso was entered against him. The court, by an order entered on June 7, 1949, denied the motion to set aside the decree pro confesso against Joseph Sell and, in this same order, held that the several motions filed by Bessie Harrison in the cause constituted an appearance therein, and that for her failure to file any defensive pleadings in the cause, the cause should be taken as confessed as to Bessie Harrison. It was thereupon ordered that the cause proceed ex parte.
On September 1, 1949, the attorney for petitioner filed a motion to set aside the order of June 7, 1949, which motion was sworn to by said attorney, alleging that he had not been present at the hearing on the basis of which such order was entered; that the hearing had been held despite the fact that he had advised the attorney for respondents that he would not be able to be present at the hearing; that he was not furnished a copy of such order of June 7, 1949, and was not aware that said order had been made and entered until August 10, 1949, when he discovered it by checking through the court files. He also petitioned the court to be allowed to file an answer in the cause. The record shows no disposition by the court of this motion and petition.
On November 29, 1949, the petitioner's attorney gave notice to respondent's attorney of the filing of a "motion to open up the default" and to allow petitioner to file a plea to the merits, attaching to said notice a copy of the motion and proposed answer of petitioner, and giving notice that the cause had been set down for hearing on December 6, 1949. By order of the court, the hearing was postponed to December 20, 1949, at which time the "motion to open up the default" and proposed answer of petitioner were filed, and a hearing had upon same.
On January 13, 1950, the Chancellor entered his order denying the motion to open up the default and disallowing the petition to file an answer, on the ground that "The record shows clearly that the relief sought for has been several times heretofore asked of this court and by due orders denied and that said Orders have been of force and effect for many months without being excepted to or set aside or vacated and that the Court now finds that it does not have jurisdiction to set aside all of its heretofore Orders and now enter a new order reversing its position consistently taken over a period of years. It is further suggested that the purported answer offered to be filed in the case does not set up a meritorious defense and does not indicate to the Court that an injustice has been done."
It is this order of January 13 which this court, by petition for writ of certiorari, is requested to review. The petitioner prays that this court quash the order of January 13, 1950, and that the defendant be permitted to file her answer in the cause and that the default decree entered against her be set aside and held for naught.
The motion to open up the default and the answer of petitioner, filed on December 20, 1949, alleged that the respondent Lindsay Hamby, at the time he joined in the suit against Joseph Sell, was the legal guardian of Joseph Sell, which fact he deliberately withheld from the Court; that, after filing the suit, he instituted recommitment proceedings against Joseph Sell and delivered him to the committing authorities, in order to prevent a contest of the suit; that Joseph Sell's mental status was deliberately withheld from the court for the sole purpose of avoiding the appointment of a guardian ad litem; and that the suit was instituted with knowledge of Sell's impending death for the sole purpose of avoiding a fair and equitable distribution of Sell's property under his will. It will be noted that the order of January 13, 1950, found that these allegations did not "set up a meritorious defense" and did not "indicate to the Court that an injustice has been done."
It will be also noted that the order of January 13, 1950, recited that "The record shows clearly that the relief sought for has been several times heretofore asked of this Court and by due orders denied and that said Orders have been of force and effect for many months without being excepted to or set aside or vacated * * *" The record does not show, nor does counsel for respondents point out, where in the application of petitioner for the re-opening of the decree pro confesso, or "default," entered against her was acted upon by the lower court until its order of January 13, here reviewed. There appears in the record, uncontradicted, the sworn motion of counsel for petitioner showing that the decree pro confesso was summarily entered against petitioner after a hearing at which neither she nor her counsel was present, due to no fault of their own, which hearing was intended to be solely on petitioner's motion to set aside and vacate the decree pro confesso entered against Joseph Sell. As heretofore noted, the order of June 7, 1949, not only denied petitioner's motion to set aside the decree pro confesso against Joseph Sell, but also (1) found that the several motions filed by petitioner constituted her appearance in the cause, (2) found that since she had filed no further pleadings or any answer in the cause and the June Rule Day having passed, the cause should be taken as confessed as to her, and (3) decreed that the cause proceed ex parte.
Our review of the record convinces us that the petitioner has never fairly been given an opportunity to plead to the merits of this cause, and that to allow the order of January 13, 1950, to stand would result in a miscarriage of justice and a substantial injury to the legal rights of petitioner. This is particularly true in view of the fact that the lower court, by its order of May 30, 1947, heretofore referred to, assumed exclusive jurisdiction of the administration of the estate of Joseph Sell, including the determination of the legality of his will.
It is therefore, ordered that certiorari issue and that the order of January 13, 1950, be, and the same is hereby quashed.
ADAMS, C.J., and TERRELL and CHAPMAN, JJ., concur.