Stribling v. Hart

Citations

• 20 Fla. 235

Syllabus

<p>1. Tlie 45th Rule of Chancery Practice prescribes the time in which an answer after appearance should be filed by the defendant, and the 51st Rule prescribes the time in which the defendant, after his demurrer to plaintiff’s bill is overruled, shall file his answer. In neither ease is the plaintiff required by these rules or the general rule upon the subject of notice (Rule 3) to take any action to authorize him to enter an order that the bill be taken pro confesso in the event the answer is not filed as required by the rules mentioned.</p> <p>2. After entry of the order that the bill be taken pro confesso, the plaintiff may at once, and without notice, cause the matter of the bill to be decreed at any time, if the same can be done without an answer and is proper to be decreed, that is to say, he can have such decree as the equities disclosed by his bill authorize.</p> <p>3. When the hill is thus taken pro confesso and final decree had, it is, under Rule 45, a decree nisi, subject to be opened upon cause shown upon motion and affidavit and upon terms, and does not become “absolute ” until the expiration of twenty days after the rendition thereof. After the expiration of this time, without any action by the defendant, the decree becomes final and “absolute.” There is no difference arising out of the fact'that under the statute this final decree is entered out of term between it and a decree entered in term ; and the proceeding is in a strict sense a record by which the rights of the parties in controversy are ihnilly adjudicated.</p> <p>4. While it appears that the Circuit Courts of the United States have not power to open such decrees absolute and enrolled, upon motion, and that their power is confined to such proceedings as may be had by bill of review, rehearing or original bill, still under the uniform practice in the State courts such -a power is admitted to exist, aud may be exorcised under certain circumslanco.s, and as a motion is the only moans by which t