Lindsley v. Mciver
| Decision Date | 06 March 1906 |
| Citation | 40 So. 619,51 Fla. 463 |
| Parties | LINDSLEY et al. v. McIVER et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Duval County; R. M. Call, Judge.
Bill by Lizzie McIver and others against Eugene A. Lindsley and George N. Lindsley. Decree for plaintiffs, and defendants appeal. Affirmed.
Syllabus by the Court
In passing upon a demurrer to the whole bill in a suit in equity, every presumption is against the bill; but it is also true that such a demurrer operates as an admission that all the allegations in the bill which are well pleaded are true and a demurrer to the whole bill should be overruled if the bill makes any case for equitable relief.
Matters dehors the bill cannot be raised by way of demurrer, but must be raised by way of plea or answer.
A plea in equity setting up a former decree in bar must show that the former suit was substantially between the same parties 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 defendants were substantially the same in the second bill as in the first. It is neither necessary nor proper practice to attach as an exhibit to such a plea all the testimony taken in the former suit.
Where a bill in equity is filed for partition which contains allegations as to advancements having been made to the ancestress of complainants and to some of the defendants by a common ancestrees of complainants' ancestress and of the defendants, and complainants offer to bring such advancement into hotchpot and seek to have defendants do likewise, in accordance with the provisions of section 1826 of the Revised Statutes of 1892, and certain of the defendants interpose a plea of former adjudication, which plea is set down for a hearing, and it appears that the former suit was brought by complainants against defendants for partition alone, the bill alleging therein that complainants and defendants were tenants in common, to which some of the defendants interposed an answer, denying therein the tenancy in common and averring that complainants and defendants were coparceners and setting up the matter of advancements, testimony was taken upon the issue so made and the court made an order to the effect that advancements had been made and that the equities were with the answering defendants, and dismissed the bill, such a plea of former adjudication is properly found to be insufficient the title to the relief sought not being substantially the same in the two suits.
A. H. King, for appellants.
D. H Doig and Stephen E. Foster, for appellees.
On the 5th day of December, 1904, the appellees as complainants filed their amended bill in chancery in the circuit court in and for Duval county against the appellants and Luella Moss and Charles Moss, her husband, Josephine G. Macy and Theodore Macy, her husband, as defendants, alleging therein, in substance, that the complainants, Lizzie McIver, Alsina M. Man, Richard Clarke, William B. Clarke, Charles A. Clarke and George W. Clarke, were the sole heirs at law of Flora A. Clarke, deceased, who died, to wit, -----; that the said Flora A. Clarke and the defendants, Eugene A. Lindsley, Luella Moss, Josephine G. Macy and George N. Lindsley, were all the children of Alsina D. Lindsley, deceased, who died on the 3d day of August, 1902, intestate, leaving as her sole heirs at law the complainants last named above and the defendants who have just been named; that Alsina D. Lindsley died seised and possessed of a certain tract of land situated in the said county of Duval, which is fully described; that an undivided one-thirtieth interest and estate in and to the said land descended to each of the complainants last named and an undivided one-fifth interest and estate therein descended to each of the last-named defendants; that in her lifetime, to wit, September, 1, 1884, Alsina D. Lindsley had conveyed to the defendant Luella Moss, as an advancement, a certain tract of land, which is fully described, of the value of $75, and had conveyed as an advancement to the defendant Josephine G. Macy, on the 11th day of January, 1881, a certain tract of land, which is fully described, of the value of $87.50, and had conveyed on the 11th day of January, 1881, as an advancement to Flora A. Clarke, the ancestress of the last-named complainants, a certain tract of land, which is fully described, of the value, 'at the date of said conveyance and advancement' of $87.50; that the complainants now bring the said advancement to their ancestress, Flora A. Clarke, 'into hotchpot with the whole estate, real and personal, descended from said Alsina D. Lindsley, deceased.' The bill prays for a partition of the tract of land of which Alsina D. Lindsley died seised and possessed, that said Luella Moss and Josephine G. Macy each bring her respective advancement into hotchpot, in order that the value of all of said advancements may be ascertained at the respective times when they were made, so that the tract of land so descended may be partitioned in accordance with law, due regard being had to the respective advancements, and for general relief. The bill also alleges that no other persons except those named therein and whose respective interests are set forth have any interest in or title to the tract of land of which partition is sought.
A decree pro confesso was entered against Luella Moss and Charles Moss, Josephine G. Macy, and Theodore Macy.
On the 8th day of April, 1905, Eugene A. Lindsley, one of the defendants, interposed the following demurrer:
On the 18th day of July, 1905, the court made an order overruling the demurrer, which order was filed on the 21st day of July, 1905.
On the 7th day of November, 1904, George N. Lindsley, one of the defendants, had filed an answer disclaiming any interest in the tract and reciting that since the filing of the original bill he had sole his entire interest therein to Eugene A. Lindsley, one of his codefendants, who had taken possession thereof.
On the 3d day of April, 1905, the defendant, Eugene A. Lindsley, filed a plea to the amended bill, which, omitting the formal parts, is as follows:
'This defendant by protestation, not confessing or acknowledging all or any of the matters and things in the complainants' said bill of complaint, mentioned to be true in such manner and form as the same are therein and thereby set forth and alleged, both plead thereunto and for plea says: That on and prior to the 5th day of August, A. D. 1904, there was pending in this court a certain cause, wherein the complainants herein were complainants, and the defendants herein were defendants, the files and records of which suit are now on file and record in and among the files and records of this court; and wherein these complainants set up the identical cause of action which is set up in this cause, as by the records of said suit now remaining in the said circuit court more fully appears.
'And this defendant says: That the parties in this and the former suit are the same, and that no other or different persons are in any wise connected with said cause; that the subject-matter in this and the former suit are the same and not other or different subject-matter; that the judgment in said former suit amounted to a final determination of said subject-matter and cause of action; that said final decree has been signed and enrolled, all of which will more fully appear by the bill of complaint, answer thereto, testimony taken therein, and decree of ...
To continue reading
Request your trial
-
Atlantic Coast Line R. Co. v. Benedict Pineapple Co.
...Fla. 559, 35 So. 95; Scott v. Jenkins, 46 Fla. 518, text 530, 35 So. 101, 105; Durham v. Edwards, 50 Fla. 495, 38 So. 926; Lindsley v. McIver, 51 Fla. 463, 40 So. 619. Bennett v. Herring, 1 Fla. 387, text 390, the following language was quoted and approved: 'The declaration must show plainl......
-
Hull v. Burr
... ... a demurrer to the whole bill should be overruled if the bill ... makes any case for equitable relief. Lindsley v ... McIver, 51 Fla. 463, 40 So. 619, and authorities there ... cited; Holt v. Hillman-Southland Co., 56 Fla. 801, ... 47 So. 934. This ... ...
-
Key West Wharf & Coal Co. v. Porter
...v. McKinnon, 45 Fla. 388, 34 So. 272; Hull v. Burr, 58 Fla. 432, 50 So. 754; Futch v. Adams, 47 Fla. 257, 36 So. 575; Lindsley v. McIver, 51 Fla. 463, 40 So. 619; Roberts v. Cypress Lake Naval Stores Co., 58 514, 50 So. 678; Holt v. Hillman-Sutherland Co., 56 Fla. 801, 47 So. 934; City of O......
-
Capital City Bank v. Hilson
... ... law is to be ascertained by the court. See Brown v ... Avery, 63 Fla. 355, 58 So. 34; Lindsley v ... McIver, 51 Fla. 463, 40 So. 619; McClinton v ... Chapin, 54 Fla. 510, 45 So. 35, 14 Ann. Cas. 365; H ... W. Metcalf Co. v. Orange ... ...