Horter v. Commercial Bank & Trust Co.

• Decision Date: 26 March 1930
• Citation: 126 So. 909,99 Fla. 678
• Parties: HORTER v. COMMERCIAL BANK & TRUST CO.
• Court: Florida Supreme Court

126 So. 909

99 Fla. 678

HORTER v. COMMERCIAL BANK & TRUST CO.

Florida Supreme Court

March 26, 1930

Commissioners' Decision.

Suit by the Commercial Bank & Trust Company, as trustee, against John C. Horter and others. From an order overruling his plea in abatement, named defendant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Fact allegations in bill not denied by plea, and fact allegations in plea, are deemed proved, where plea is set down for argument. Where a plea in equity is set down for argument every allegation of fact in the bill not denied by the plea is taken as true, and every allegation of fact in the plea is likewise taken as true.

Pleas in abatement are not favored, and will not be aided by intendments. Pleas in abatement are not favored by the courts, and the greatest strictness is applied to them, and they will not be aided in construction by any intendments.

In equity, plea in abatement must fully, directly, clearly, and positively allege all facts necessary to abate proceeding not by way of argument, inference, or conclusion. A plea in abatement in an equitable proceeding must clearly and distinctly aver all the facts necessary to abate the proceeding; it should be full, direct, and positive, and not state matters by way of argument, inference, or conclusion.

Pendency of prior equity suit may be pleaded in abatement to subsequent suit in same jurisdiction between same parties on same equity; rules governing abatement because of pendency of prior suit are substantially same in equity and law. As a general rule the pendency of a prior suit in equity may be pleaded in abatement to the prosecution of a subsequent suit in equity in the same jurisdiction between the same parties and upon the same equity; and the rules governing this ground of abatement are substantially the same in equity as at law.

It is no ground for abatement of second action that plaintiff therein might have same relief by cross-bill or cross-complaint in prior action against him. The fact that the plaintiff in the second action might have sought the same relief by a cross-bill or a cross-complaint in a prior action brought against him is not ground for abatement of the second action.

Plea in equity setting up pendency of another other suit should state character and object of former suit, relief prayed, and that both suits were for same purpose; plea in equity setting up pendency of another suit will generally fail, if there is substantial difference in relief sought in respective suits. A plea in equity setting up the pendency of another suit is analogous to such a plea at law, and is in most respects governed by the same principles. It should set forth the general nature and character and objects of the former suit and the relief prayed, and it should state, not only that the same issue is joined in the former suit as in the suit before the court, and that the subject matter is the same, but also that the proceedings in the former suit were taken for the same purpose. The plea will generally fail where there is a substantial difference in the relief sought in the two suits.

Plea of another suit pending differs from plea of former judgment or decree, in that it is in abatement instead of in bar; to sustain plea of another suit pending, identity of matters involved must be such that judgment in first suit could be pleaded in bar as former adjudication. A plea of another suit pending is very similar to a plea setting up a former judgment or decree; one being in abatement and the other in bar of the proceeding. The identity of the matters involved must be such that a judgment in the first suit could be pleaded in bar as a former adjudication.

Generally plea of another suit pending applies only where plaintiff in both suits is same person. As a general rule, a plea of a prior action pending applies only where plaintiff in both suits is the same person, and both are commenced by himself and not to cases in which there are cross-suits by a plaintiff in one suit who is defendant in the other; in other words, where the party defendant in the prior suit is plaintiff in the subsequent suit, the first suit cannot be pleaded in abatement of the second.

In mortgage foreclosure suit, plea in abatement on ground of pendency of another suit held insufficient. The plea in abatement filed in this case, setting up the pendency of another suit is faulty, because: First, it does not allege in detail or even generally material parts of the pleadings and proceedings in the former suit (allegations of mere conclusions of the pleader, unsupported by allegations of fact upon which an issue can be made, will not suffice); second, it does not show what relief was sought in the former suit; third, no facts are alleged in the plea that will take this case out of the general rule that the complainant in both suits must be the same person.

Appeal from Circuit Court, Pasco County; O. L. Dayton, Judge.

COUNSEL

W. K. Zewadski, Jr., and Wm. C. Pierce, both of Tampa, for appellant.

Hampton & Greene, of Ocala, for appellee.

OPINION

DAVIS C.

The appellee instituted suit in the circuit court of Pasco county for the foreclosure of a real estate mortgage. N.E. Bowden, the mortgagor, and John C. Horter and the New Port Richey Country Club, a Florida corporation, were named in the bill as defendants. The bill contains the following provision:

'Your orator further charges that the defendants New Port Richey County Club and John C. Horter have or claim to have some interest, claim or title to the lands involved in this suit, the nature of which is unknown to your orator because the same are not of record, but the said John C. Horter filed a suit in Pasco County on February 17, 1927, in which a lis pendens notice was recorded in Book 2, Page 150, in which case he undertakes to put all persons upon notice of the pendency of said suit, but your orator says that whatever interest or claim the said John C. Horter has is inferior in dignity, subsequent in point of time, and subject to the mortgage of your orator as aforesaid. That the New Port Richey Company, as your orator is advised, caused the deed for the said premises to be placed in escrow and held, but the same has never been delivered, but the said deed is subsequent in point of time to your orator's mortgage and whatever rights it has are subject to the rights of your orator therein.'

The complainant prays, among other things, that the court decree that the right, title interest, and claim of the said defendants are subject to the rights of the complainant. To this bill, the defendant John C. Horter, interposed a plea in abatement as follows:

'Now comes John C. Horter, one of the defendants named in the foregoing cause, by his solicitors undersigned, and files herewith his plea in abatement to the Bill of complaint heretofore filed by complainant, and thereupon your defendant, John C. Horter, shows unto this Honorable Court that there is at this time in this same court, in the equity side thereof, another action pending herein, in which said suit the same subject matter is involved as in this suit, that the same parties are included therein and the same facts and circumstances set forth, the same matters and things are to be determined and adjudicated, and that a final determination and disposition of said pending cause will determine and conclude the matters and things herein at issue, and in furtherance thereof the defendant, John C. Horter, shows the following facts:

'1st. That on May 4th, A. D. 1926, John C. Horter filed his bill of complaint in the equity division of this same court, which said action affected the same identical property as is made the subject matter of this cause and that said John C. Horter made as defendants to his bill all the parties known at that time to have or claimed to have any interest or claim whatever in or to said property; that said bill of complaint as filed by John C. Horter set forth very definite and material facts in support of his said cause of action and prayed for very definite and certain relief to be granted him by this court of equity; that said bill fully set forth all the facts and circumstances surrounding the giving of the alleged mortgage, the foreclosure of which is sought as the basis of this present cause, and that it was fully set up in said bill of complaint as filed by John C. Horter why the said alleged mortgage should not be held and deemed by this court to in anywise affect the title or interests which said John C. Horter held in and to the said real estate therein and herein described.

'2nd. That on July 20th, A. D. 1927, said John C. Horter filed his amended bill of complaint in his said cause and in addition to alleging all the facts contained in his original bill, set forth in addition, that the said mortgage therein and herein referred to had purported to the information and belief of John C. Horter, been transferred or assigned to The Commercial Bank & Trust Company, as Trustee, a corporation, the party named as complainant in this cause, and that simultaneous with the filing of said amended bill the said Commercial Bank & Trust Company, as trustee, a corporation, was named as an additional defendant to said cause and summons in chancery thereupon issued and was served upon said Commercial Bank & Trust Company, as trustee, a corporation, requiring said corporation to come in and answer to the amended bill as filed by John C. Horter.

'3rd. That said Commercial Bank & Trust Company, as trustee, a corporation, did thereafter file its appearance and did thereafter file certain pleadings in said cause and that said action is still in process of litigation and determination and that the same has not been adjudicated...