Macfarlane v. Dorsey

Citations

• 49 Fla. 341

Syllabus

<p>1. A final decree rendered in .pursuance of a previous decree pro confesso may be set aside after tbe 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 be entertained from a mere desire to let in a defence on the merits, but only where strong and unavoid-ible circumstances exist excusing failure to answer at the proper time.</p> <p>2. To authorize the granting of an application to set aside a final decree, which has become absolute under Section 1446 of the Revised Statutes of 1892, for the purpose of • permitting a defence 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 defence which he was prevented from interposing at the proper time by the existence of strong and unavoidable circumstances. The proposed answer of the defendant should also be exhibited to the court at the time of the making of the application.</p> <p>3. An interlocutory order setting aside a final decree, which has become absolute under the statute, for the purpose of permitting a defence to be interposed, will be reversed on appeal where it is not shown that such circumstances existed as to .authorize the action of the court in setting aside the decree, and the action of the court thereon is assigned as error, unless it clearly appears that the bill of complaint is without equity, in which event such order will not be reversed, but the bill will be dismissed without prejudice.</p> <p>4. Where the title to land has never been in the judgment debtor, but is held by another on a secret trust for such debtor, such land is not subject to' levy and sale under an execution .at law issued upon a judgment recovered against such debtor, but is an equitable a