Opinion
June 23, 1950. Rehearing Denied July 25, 1950.
Appeal from the Circuit Court for Dade County, N. Vernon Hawthorne, J.
Blackwell, Walker Gray, Miami, for appellant.
Walton, Hubbard, Schroeder, Lantaff, Atkins, Miami, for appellee.
The appellant was unsuccessful in its effort to obtain from the circuit court a writ of prohibition to prevent the judge of the civil court for record from proceeding further in a certain cause entertained in that court in which final judgment had been entered and, subsequent to the expiration of the term, set aside.
This brings us to the history of the proceeding as it appears in the records of the trial court.
Miami Beach Marine Basin, Inc., sued the relator, and the relator demurred to its declaration. The judge entered an order that the demurrer be "sustained with leave to the plaintiff to file an amended declaration, serving a copy of said amended declaration upon attorneys for defendant, and [that] the defendant [should] have twenty days from the receipt of said copy of said amended declaration within which to file such other proceedings as it [might] be advised." This was 15 September 1948.
On 25 March 1949 the judge, on motion of the relator, entered a final judgment against the defendant, and the following August the amended declaration was filed and copy was served on counsel for the relator, in compliance with the requirement of the original order. Then, 7 September 1949, the plaintiff moved to vacate the judgment on the grounds that it had been entered for failure to amend the declaration despite the fact that no limitation was placed on the time to do so and that the judgment had been entered without notice. Thereupon the trial judge, feeling that he had entered the judgment without authority, very properly set it aside.
The appellant contended before the circuit court and insists here that no power was vested in the court on 7 September 1949 to enter the order of vacation, the judgment having been recorded in the March term, 1949, which ended 9 April 1949, and a new term having commenced two days afterward. To support this position there is cited to us the familiar statute requiring that motions to vacate defaults be filed within sixty days unless a term intervenes, Section 50.10, Florida Statutes 1941, and F.S.A., and also the equally familiar and more relevant rule that a court loses control of its judgments after the expiration of the term in which they are entered. It seems to us, however, that the present proceeding is governed by the exception rather than the rule. In Kroier v. Kroier, 95 Fla. 865, 116 So. 753, this court said that "ordinarily" this was the correct rule, but added that a judgment entirely void, as distinguished from one voidable, might be vacated at a subsequent time. The court has recognized the exception that a judgment entered from fraud, collusion, deceit, or mistake may be opened or vacated at any time. Alabama Hotel Co. v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825; Zemurray v. Kilgore, 130 Fla. 317, 177 So. 714; Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514.
When the demurrer in this case was sustained, the privilege of amending was granted to the plaintiff, but no time was fixed for the purpose, only a requirement that a copy of the amended pleading be served on the defendant, who was privileged within twenty days to plead to it. No effort was made by the defendant to precipitate the filing of the amendment by having the court set a definite time that this be done. The attorney for the defendant, without the formality of any notice to his adversary, simply applied to the judge for a final judgment, and secured it. Furthermore, the judge recited in his order setting aside the judgment that the parties had "stipulated and agreed before the Court that the plaintiff might have as much time as it might require within which to file an amended declaration."
If counsel for defendant thought the plaintiff was taking more time than was needed to amend and that the interests of his client were suffering because the litigation was lagging, he should have appealed to the court to fix a definite period within which the amendment should be filed and should have notified his adversary of the request; failing in that, he should have notified his opponent of the time he would appear before the court and request the entry of the judgment.
The recital of the court about counsels' agreement with reference to the plaintiff's being allowed an indefinite period within which to revise its pleading is entitled to great weight, and it cannot be impeached or swept aside by the appellant's bald statement that it had "no knowledge of any such oral stipulation and [denied] that any such was made with counsel for the plaintiff."
We conclude that the circuit court ruled correctly in dissolving the alternative writ of prohibition.
Affirmed.
ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.