Burr v. Hull
| Citation | 63 So. 300,66 Fla. 20 |
| Parties | BURR et al. v. HULL et al. |
| Decision Date | 25 June 1913 |
| Court | Florida Supreme Court |
Rehearing Denied Nov. 4, 1913.
Appeal from Circuit Court, Polk County; F. W. Whitney, Judge.
Bill by Arthur E. Burr and others against Joseph Hull and others. From order denying motion to strike cross-bill, complainant and others appeal. Reversed.
Syllabus by the Court
An order denying a motion to strike a cross-bill in an equity cause is appealable.
Striking a pleading is a severe remedy, and should be resorted to only in cases palpably requiring it for the proper administration of justice.
A pleading in proper form, duly authenticated and filed, should not be stricken for insufficiency; but its sufficiency should be tested by demurrer or other appropriate proceeding.
A pleading may be stricken if it is wholly irrelevant to the cause, or if it violates a rule or order of court, or if it be a palpable attempt to impose upon or trifle with the court, as by merely repeating or reiterating to no better effect the same matter which has already been presented and adjudged.
Where a cross-bill is filed, consisting of matters of defense that have been adjudicated as being irrelevant as a defense in an answer, such cross-bill should be eliminated, and under particular circumstances striking it is not a harsh or inappropriate remedy.
COUNSEL Jas. F. Glen and E. R. Gunby, both of Tampa, and Frank L. Simpson, of Boston, Mass., for appellants.
Bisbee & Bedell, of Jacksonville, for appellees.
For prior appeals in this cause, see Hull v. Burr, 58 Fla. 432, 50 So. 754; Id., 61 Fla. 625, 55 So. 852; Id., 62 Fla. 499, 56 So. 673; Id., 64 Fla. 83, 59 So. 787.
Burr as trustee in bankruptcy, brought suit against Hull and others. A supplemental bill was filed for the purpose of making new parties complainant. Exceptions to an answer to this supplemental bill were sustained, and such order was affirmed, in Hull v. Burr, 64 Fla. 83, 59 So. 787. A replication was filed to the answer as it remained after exceptions to portions thereof were sustained. Subsequently the defendants below sought to present by cross-bill, seeking affirmative relief, practically the same matters that had been presented by the answer to the supplemental bill, and held to be insufficient on appeal to this court. The trial court denied a motion to file amendments to the answer, and also denied a motion to strike the cross-bill to the supplemental bill, with leave to the cross-defendants to plead, answer, or demur to the cross-bill in 15 days, and continued a motion for the appointment of a master to take testimony in the cause. The portion of the order denying the motion for leave to file amendments to the answer was not appealed from. The complainants, who are cross-defendants, appealed from the portions of the order denying the motion to strike the cross-bill, and continuing the motion to appoint a master to take testimony.
The orders here complained of are appealable. See Guggenheimer & Co. v. Davidson, 62 Fla. 490, 59 So 801; State ex rel. Burbridge v. Call, 41 Fla. 450 26 So. 1016; section 1908, Gen. Stats. of 1906.
The cross-bill prayed that the adjudication of the bankruptcy court of Massachusetts be declared hull and void, and that the cross-defendants be enjoined from asserting in any court that they are trustees in bankruptcy as claimed by them.
It appears that the matters sought to be set up by cross-bill as a basis for affirmative relief against the supplemental bill are in greater part at least and in legal effect practically the same as those set up by the answer to the supplemental bill, which matters were held to be insufficient on exceptions to the answer. Hull v. Burr, 64 Fla. 83, 59 So. 787. In so far as the allegations of the cross-bill were not in effect contained in the answer and held insufficient, they would be as effective by answer as by cross-bill, making the cross-bill unnecessary. Matters held insufficient in the answer cannot be presented by cross-bill, since they are res adjudicata in the cause.
Striking a pleading is a severe remedy, and should be...
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