Da Costa v. Dibble

• Citation: 24 So. 911,40 Fla. 418
• Court: United States State Supreme Court of Florida
• Decision Date: 03 December 1898
• Parties: DA COSTA v. DIBBLE et al.

24 So. 911

40 Fla. 418

DA COSTA v. DIBBLE et al.

Florida Supreme Court

December 3, 1898

Appeal from circuit court, Alachua county; William A. Hocker, Judge.

Suit by A. J. Da Costa, executor of Mary E. Shuford, deceased against William Dibble and J. B. Bunce, as executors of Calvin B. Dibble, deceased, and J. B. Bunce. Decree for defendants, and plaintiff appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. A pure plea in equity must be direct and positive; it must not state matters by way of argument, inference, or conclusion it must aver all facts necessary to render it a conplete equitable defense to the case made by the bill so far as the plea extends; and where its allegations, being taken as true do not, so far as it purports to extend, make out a full and complete defense, or where the necessary facts are to be gathered by inference alone, it will not be allowed upon argument.

2. A plea in equity, setting up a former decree in bar, must show that the former suit was substantially between the same parties and for the same subject-matter. It must set forth so much of the former bill and answer as will suffice to show that the same point was then in issue, and it should aver that the allegations as to the title to relief against the defendant were substantially the same in the second bill as in the first.

3. After a cause in equity has been set down for final hearing after issue and the expiration of the time for taking testimony, the complainant has no absolute right to a dismissal of his bill without a hearing upon the merits; nor is the court confined to an order of dismissal for want of prosecution in case the complainant fails to appear at or proceed with the hearing.

4. Although every dismissal of a bill in equity upon final hearing is not necessarily an adjudication upon the merits yet the rule is that where the cause is at issue, and on final hearing, either upon pleadings and testimony, or upon the pleadings after the time for taking testimony has expired, a dismissal of the bill by the court, even if done on the complainant's motion, is deemed to be a dismissal upon the merits; this being a conclusive presumption from the record where the order is not made 'without prejudice,' and nothing appears to show that the dismissal was upon other grounds.

5. An appeal from a final decree in one case cannot bring up for review an order made by the same court in another independent proceeding, even though between the same parties.

COUNSEL

Hampton & Ammons, for appellant.

T. M. Day. Jr., for appellees.

OPINION

PER CURIAM.

On June 8, 1883, Mary E. Shuford filed her bill in the circuit court of Alachua county against Calvin B. Dibble and Jonathan B Bunce, praying, among other things, that said defendants be decreed to be trustees for complainant of certain lands described in the bill, and required to execute deeds conveying said lands to her in fee simple. On August 6, 1883, the defendants filed their plea to the whole bill, alleging 'that heretofore, to wit, in November, A. D. 1881, the said complainant filed her bill of complaint in this honorable court, and herein set out the same facts and circumstances, and made the same allegations, and set up the same grounds of relief, and contained the same prayer, as set out and made and contained in this bill. Afterwards, to wit, on the rule day in January, A. D. 1882, the defendant Calvin B. Dibble filed his answer to said bill, and denied all and singular the allegations and facts upon which the complainant based her ground of relief. And afterwards, to wit, the rule day in March, A. D. 1882, the complainant filed her general replication to said answer and joined issue thereon. These defendants further say that the complainant in said bill had ample time and opportunity to take testimony in said case, and neglected and failed to do so; that long after the time allowed by law for taking testimony had elapsed, to wit, some eight months thereafter, the defendant regularly set down said case for hearing on bill and answer. And afterwards the defendants duly notified the complainant that the defendants would bring said cause to a hearing before his honor, Thomas F. King, in chancery sitting, upon bill and answer, on a certain day mentioned in said notice. In pursuance of said notice, and some time before this bill was filed, said cause was brought to a hearing, in the presence of complainant's and defendants' solicitors, before his honor, Thomas F. King, in chancery sitting; and thereupon, upon motion of the complainant, a final decree was signed and enrolled by the said chancellor, dismissing said bill, at complainant's cost, which order or decree was final in the premises, and was a full and ample adjudication of the rights, interests, and claims of the complainant, and is a bar to this suit.' Mary E. Shuford and Calvin B. Dibble having died, the cause was revived by an order dated February 10, 1887, making A. J. Da Costa, executor of the will of Mrs. Shuford, and William Dibble and J. B. Bunce, executors of the will of Calvin B. Dibble, parties. The plea was set down for argument, and on February 16, 1894, the court allowed the plea, with leave to complainant to reply thereto. Replication having been filed, testimony was taken, and upon final hearing the plea was sustained and the bill dismissed by decree dated January 28, 1895. From this decree the present appeal was taken.

It appears from the testimony that the decree mentioned in the plea had not, at the time it was first offered in evidence, been recorded upon the minutes of the circuit court. The appellees requested the clerk to record the same, but he declined to do so. Thereupon they entered a motion in the former suit for a rule against the clerk to show cause why he should not be required to record the decree. The rule was granted, and thereupon the appellant entered a motion in the former suit to amend the decree of dismissal entered therein by adding, 'without prejudice.' This motion was denied, and the rule against the clerk was made absolute. The errors assigned in this court relate to the order allowing the plea of former decree upon argument, the order refusing to amend the decree of dismissal in the former suit, and the decree finding the plea to be true under the evidence and dismissing the bill.

I. The circuit court erred in allowing the plea upon argument. This plea relies wholly on matters dehors the bill, and it is what is technically called a 'pure plea.' Bouv. Law Dict tit. 'Pure Plea.' One requisite of such a plea is that it should clearly and distinctly aver all the facts necessary to render it a complete equitable defense to the case made by the bill so far as the plea extends. It should be direct and positive, and not state matters by way of argument, inference, or conclusion. Where its allegations, being taken as true, do not, so far as it purports to extend, make out a full and complete defense, or where the necessary facts are to be gathered by inference alone, it will not be sustained. Story, Eq. Pl. §§ 658-662; Cheney v. Patton, 134 Ill. 422, 25 N.E. 792. This plea attempts to set up a former decree in bar of the present bill. A plea of this character must show that the former suit was substantially between the same parties and for the same subject-matter. It must set forth so much of the former bill and answer as will suffice to show that the same point was then in issue, and it should aver that the allegations as to the title to relief against the defendant were substantially the...