D. F. SMOAK, ET AL., APPELLANTS,
v.
CITY OF PUNTA GORDA, APPELLEE
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The Florida Supreme Court affirmed a final decree foreclosing special assessment liens filed by the City of Punta Gorda against property owners for street improvements and sewer installation. The court rejected the defendants' motion to vacate a decree pro confesso, holding that such decrees should not be set aside when entered due to the defendant's own negligence.
The court affirmed the final decree and held that a decree pro confesso should never be set aside when it results from the defendant's own negligence. The trial court did not abuse its discretion in denying the motion to vacate.
“The question of setting aside a decree pro confesso is addressed to the sound discretion of the court, which will be exercised according to the circumstances of each case, but it should never be set aside when it is in consequence of defendant's own negligence, and the exercise of this discretion will not be interfered with by the appellate court unless there has been a gross abuse of that discretion.”
Establishes the standard for reviewing trial court decisions on motions to vacate decrees pro confesso
The City of Punta Gorda filed a bill of complaint to foreclose special assessment liens against D. F. Smoak and others for two types of improvements: …
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— The City of Punta Gorda filed its bill of complaint against D. F. Smoak, et al., to foreclose alleged liens for certain special assessments against certain lots within the city limits of the corporation. There were alleged to be two assessments against each parcel of land described in the bill. One was alleged to have been made for grading, paving, curbing and storm drainage on certain named streets and the other assessment was for installing and laying a -sanitary sewer. Both improvements were *905located on and in streets upon which the two lots abutted. Blakely was made party defendant as receiver of the First National Bank of Punta Gorda because it was alleged that the Bank held a mortgage on one of the lots.
Decree pro confesso was entered against all defendants and thereafter -a final decree was entered.
After the entry of the final decree, Blakely filed motion to vacate the decree pro confesso and the final decree.
Decree pro confesso was entered on the 2nd day of September, 1929. Final decree was entered on the 9th day of September, 1929. Motion for order vacating decree pro confesso and final decree was filed on October 4th, 1929. Such motion was denied. Appeal was taken from the final decree and from the order overruling the motion to vacate decree pro confesso and the final decree.
In Strickland et al. v. Jewell, 80 Fla. 221, 85 So. R. 670, this Court say:
‘ ‘ The question of setting aside a decree pro confesso is addressed to the sound discretion of the court, which will be exercised according to the circumstances of each ease, but-it should never be set aside when it is in consequence of defendant’s own negligence, and the exercise of this discretion will not be interfered with by the appellate court unless there has been a gross abuse of that discretion.”
The final decree herein should be affirmed on authority of the opinion and judgment in the cases of Walters v. City of Tampa, 88 Fla. 177, 101 So. R. 227, and Abell v. Town of Boynton, 95 Fla. 984, 117 So. R. 507, and it is so ordered.
Affirmed.
Terrell, C. J., and Whitfield, Ellis, Strum, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Abell v. Town of Boynton, 95 Fla. 984 (Fla. 1928)
- Sallie H. Walters and John H. Walters v. City of Tampa, 88 Fla. 177 (Fla. 1924)
- Strickland v. Jewell, 80 Fla. 221 (Fla. 1920)