Daytona Enterprises, Inc. v. Wagner (91 So. 2d 171, 1956)

O’CONNELL, Justice.

• C. J." Wagner,, who is-respondent in this petition for writ,: of certiorari brought a chancery .action against -the, defendant, petitioner • here, ■ wherein Wagner sought cancellation of a contract and award of a money judgment. Service of .process was made on-an attorney who was secretary of .and resident agent for the defendant corporation. This attorney filed an answer for the defendant and thereafter a summary final decree wás rendered in favor of Wagner. Execution was issued on the decree and levy- made on assets of. defendant. On the day set for sale of the assets to satisfy the decree defendant, .through other attorneys, filed a motion for order to show cause, wherein the court was asked to stay the execution sale and set aside the decree. The court stayed the :sale, issued a rule to show cause to'Wagner and the attorney who had filed the answer for the defendant corporatiomdirecting that they show’cause why. the stay order should not be made permanent and the final decree set aside. After a hearing pursuant to-this order, the chancellor issued an order dated October 9, 1956 appointing a speciál'ex-aminer to hear and take testimony relative to the matter but. specifically, limited the examiner to taking and-.hearing testimony on the sole issue of the authority of the attorney in- question to file the answer for defendant. ' • .

In its motion' for order to show cause and to set aside final'decree the defendant contended that.the motion should be granted for" four reasons. They are: (I) insufficiency of returfi of process; (2) insufficiency oi process; (3) the attorney had no authority to’ file an answer for defendant; and (’4) the attorney was neither authorized nor qualified to file the answer for defendant and was not qualified to accept service'of process because the attorney liad an interest in the outcome of the cause, which interest- was adverse to defendant, and that the attorney had represented plaintiff in another action brought by the president of the defendant corporation and Ihad during the pendency of the instant litigation formed, with plaintiff, a corporation, which corporation was engaged in the ■same business as-defendant,-'and under the samé contract sought to' be cancelled- in this suit. ■ ’■ ■ -

Defendant contends' that the 'order of October 9, 1956 was erroneous in that' it prevented it from showing evidence to ■support items (1), (2), and (4) in the preceding paragraph. The petition for writ