Chatham Inv. Co. v. Sunshine Inv.
| Decision Date | 25 October 1929 |
| Parties | CHATHAM INV. CO. v. SUNSHINE INVESTMENTS, Inc., et al. |
| Court | Florida Supreme Court |
Bill in equity by the Chatham Investment Company against the Sunshine Investments, Inc., and others, to foreclose a mortgage. Decree for defendants, and complainant appeals.
Affirmed.
Syllabus by the Court
Complainant suing to foreclose mortgage must prove every material allegation of bill contested by allegations of answer. Complainant suing to foreclose mortgage held to have burden to prove every material allegation of bill contested by allegations of answer.
Time for taking testimony in suit to foreclose mortgage having expired, defendants had right to set cause down for final hearing on bill and answer (Equity Rule 85). Where time for taking testimony in suit to foreclose mortgage had expired defendants had right to set cause down for hearing, in view of Equity Rule 85, providing that after cause is at issue and time for taking testimony had elapsed either party may, at any time, set cause down for hearing, unless further time for taking testimony is agreed on by parties.
Appeal from Circuit Court, De Soto County; W. J Barker, judge.
Treadwell & Treadwell, of Arcadia, for appellant.
Leitner & Leitner, of Arcadia, for appellees.
In this case appellant filed bill to foreclose mortgage.
M. E Gruber and M. E. Gruber, Incorporated, were made parties defendant for that, as it was alleged M. E. Gruber had by the terms of a sealed, written instrument assumed and promised to pay the indebtedness secured by the mortgage, and that M. E. Gruber, Incorporated, had likewise assumed and promised to pay the same indebtedness.
Neither the alleged written instrument by which either of the defendants M. E. Gruber or M. E. Gruber, Incorporated, became bound to pay the obligation was attached to or made a part of the bill of complaint.
M. E. Gruber and M. E. Gruber, Incorporated, filed joint and several answers, in which it was denied that M. E. Gruber or M. E. Gruber, Incorporated, had by a written instrument become bound to pay the obligation. The answers were not under oath. Oath to answer was specifically waived by the complainant in his bill of complaint. No exceptions were filed to the answer.
After the time had expired for taking testimony, the defendants answering set the cause down for final hearing on bill and answer.
In Zewadski v. Dyal et al., 78 Fla. 109, 82 So. 846, this court say:
See Equity Rule No. 85.
The burden was on the complainant to prove every material allegation of his bill...
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