Borst v. Gale

• Citation: 99 Fla. 376,126 So. 290
• Parties: BORST et al. v. GALE et al.
• Decision Date: 15 February 1930
• Court: Florida Supreme Court

126 So. 290

99 Fla. 376

BORST et al. v. GALE et al.

Florida Supreme Court

February 15, 1930

Commissioners' Decision.

Suit by Grace Olmstead Borst and another against James Gale and others. From an adverse decree, complainants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Where time for taking testimony in cause at issue has elapsed either party may set cause down for hearing on bill and answer unless further time is agreed on or allowed (Equity Rule 85). After a cause is at issue, and the time for taking testimony has elapsed, unless further time for the taking of testimony is agreed upon by the parties or allowed by the court, rule 85 for the government of the circuit court in equity authorizes either party at any time to set such cause down for a hearing upon bill and answer.

Complainant consenting to hearing on bill and answer, in equity cause being at issue as to some defendants, cannot, on appeal complain hearing was had (Equity Rule 85). When an equity cause is at issue as to some, but not as to all, of the defendants, and the complainant consents to such cause being set down for a hearing upon bill and answer, he cannot complain in the appellate court that such hearing was had.

Irregularities in chancery practice are not available for reversal to one inviting them. Irregularities in chancery practice at one's instance and by his consent are not available to reverse a final decree against him.

Appeal from Circuit Court, Putnam County; George William Jackson, judge.

COUNSEL

L. W. Nelson, of St. Augustine, for appellants.

OPINION

DAVIS C.

A bill was filed by the appellants in the circuit court in and for Putnam county for the purpose of quieting the title to real estate, and the appellees James Gale, William D. Gale, and Marie B. Gale, together with numerous other parties, if living and if dead, their unknown heirs at law, legatees, devisees, or grantees, were therein named as defendants to the suit.

James, William D., and Marie B. Gale appeared in the cause and answered the bill. Serveral months after the said answer was filed, the court made a decree in said cause which reads as follows:

'This cause having come on to be heard this 25th day of January, A. D. 1928, at Chambers, in Palatka, Florida, there being present J. N. Blackwell, representing the Complainants, and Julian C. Calhoun, representing the defendants, James Gale, William D. Gale and Marie B. Gale; and the time for taking testimony having long since lapsed, by agreement of counsel, this cause was set down for hearing upon the Bill and Answer; and

'Whereas, After due consideration of the pleadings herein, the Court doth find that the allegations of the bill of complaint against the Defendants James Gale and William D. Gale, and Marie B. Gale have not been sustained; it is,

'Thereupon, Ordered, Adjudged and Decreed by the Court that said cause be, and the same is, hereby dismissed at the cost of the Complainants, and that said cause is dismissed without prejudice to the Complainants.'

The only reason urged in brief of the appellants for a reversal of the decree is that the complainants did not set down the case on bill and answer.

After a cause is at issue and the time for taking testimony has elapsed, unless further time for the taking of testimony is agreed upon by the parties or allowed by the court, rule 85 for the government of the circuit courts in equity authorizes either party, at any time to set a cause down for a hearing.

The record does not show that any of the defendants,...