Long v. Anderson
| Decision Date | 13 July 1904 |
| Court | Florida Supreme Court |
| Parties | LONG et al., County Com'rs v. ANDERSON. |
Appeal from Circuit Court, Marion County; William S. Bullock, Judge.
Bill by Herbert L. Anderson, trustee of Elizabeth B. Anderson and others, against Henry W. Long and others. From a decree dismissing the bill, certain of the defendants appeal. Reversed.
Syllabus by the Court
1. There is no statute or equity rule in force in this state regulating the dismissal of bills in chancery by the complainant. Rule 50 of rules of circuit court in common-law actions has no applicability, being limited to actions at law.
2. As provided by section 1425 of the Revised Statutes of Florida of 1892, in the absence of provisions of the law or rules of practice of this state the rules of practice in the courts of equity of the United States, as prescribed by the Supreme Court thereof, shall be rules of practice in the courts of this state when exercising equity jurisdiction; and when the rules of practice so directed by the Supreme Court do not apply the practice of the courts shall be regulated by the practice of the High Court of Chancery of England.
3. There being no rule of practice adopted by the United States Supreme Court regulating the dismissal of bills in chancery by the complainant, the practice of the courts of this state upon this point must be regulated by the practice of the High Court of Chancery of England.
4. While there is no doubt of the general proposition that a complainant in an equity suit may dismiss his bill at any time before the hearing, it is equally well settled that he cannot do so without an order of court--a practice which implies a certain discretion on the part of the court to refuse such order, if, under the particular facts of the case, a dismissal would be prejudicial to the rights of the defendant.
5. After the filing of an answer by a defendant to a bill in equity, the mere filing of a praecipe for dismissal by the complainant, no order of the court being made thereon, cannot operate as a dismissal of the bill. The complainant cannot in this manner discontinue the suit, an order of the court being necessary.
6. Where no relication has been filed to the answer, equity rule No. 42 gives the complainant the right, upon motion or petition, without notice, to obtain an order from the court for leave to amend his bill on or before the next succeeding rule day, upon payment of costs, or without payment of costs as the court or the judge may, in his discretion, direct.
7. The matter of extending the time for the taking of testimony in an equity suit is for the court below to decide, resting within the sound judicial discretion of such court and ordinarily the determination of this question will not be disturbed by an appellate court; yet such ruling is reviewable on appeal, and where it is plainly made to appear that there has been an abuse of this judicial discretion it is the duty of an appellate court to interpose, and correct the same.
8. Where the court below has granted an extension of the time for taking testimony in an equity suit, and the defendant is prevented from taking any testimony within the time so extended by reason of the absence from the county of the master in chancery, who was appointed to take the testimony it is an abuse of judicial discretion for the chancellor to refuse a further extension of the time for taking testimony.
W. K. Zewadski, for appellants.
R. L Anderson, for appellee. The transcript of the record in this case is rather voluminous, and, in view of the conclusion which we have reached, we see no useful purpose to be accomplished in setting forth the pleadings and proceedings in detail, so shall refer to only such portions thereof as may seem necessary for a proper understanding of the opinion.
On the 19th day of September, 1900, the appellee filed his bill in chancery in the circuit court for Marion county against Henry W. Long, E. C. McLeod, William E. Allen, James M. Liddell, and D. L. Morgan, as members of the board of county commissioners of Marion county, and the Seaboard Air Line Railway, a corporation, defendants, alleging therein, among other things, that appellee was the owner and in possession of certain described lands in said county, and that said defendants, conspiring together to injure and damage appellee, were attempting to lay out and construct an alleged public highway over and upon a portion of said lands, so as to reach and establish a public highway over the same to the banks of a stream of water upon said lands known as 'Silver Springs,' and thereby and thereupon to open to the public a right of way to said stream; which acts upon the part of defendants, if the same were accomplished, would result in an appropriation of said lands, or certain portions thereof, to the public use, and would amount to a taking of appellee's estate without due process of law. The relief sought by said bill was a restraining order, and, later on, a perpetual injunction and general relief; the oath to the answer of defendants being expressly waived. On the 19th day of September, 1900, a restraining order against said defendants was granted by a court commissioner for said county, in accordance with the prayer of said bill. On the 10th day of October, 1900, the county commissioners, as defendants, filed an answer to said bill, in which some of the material allegations of the bill were denied. On the same day said county commissioners, as defendants, filed a motion to dissolve said restraining order or temporary injunction upon the answer and evidence to be filed at the hearing of said motion, and at the same time filed a number of affidavits in support thereof. On the same day the court made an order referring said motion to Richard McConathy as special master to hear the evidence and report the same, with his findings, to the court, within 10 days. The special master gave notice to appellee and said county commissioners that he would proceed to take such testimony as might be offered by the parties on the 16th day of October, 1900, at 9:30 a. m., at the Seaboard Air Line Depot at Silver Springs, in said county. The county commissioners had a subpoena issued by said special master for a number of witnesses, which was returned duly served. On the said 16th day of October, 1900, appellee filed in the office of the clerk of the circuit court a praecipe dismissing his bill as to all of said county commissioners, but retaining it as to the Seaboard Air Line Railway Company. On said 16th day of October, 1900, said special master reported that appellee, as complainant, had dismissed his bill at 8:45 a. m. on that day, as to said county commissioners; hence he had no duties to perform.
On the 2d day of April, 1902, appellee presented a petition to the chancellor below for leave to amend his bill, reciting therein that the defendants in said cause had answered said bill, but that no replication had been filed by complainant to said answers, and that it was 'necessary to a full and complete adjustment of the complainant's rights in the said cause that the said bill of complaint be amended.' On the same day the chancellor made an order allowing complainant to amend his bill before the next succeeding rule day, without payment of costs; said petition and said order being filed in the office of the clerk of the circuit court on the 4th day of April, 1902. On the same day complainant, who is appellee here, filed in said clerk's office an amendment to his bill, making quite material changes therein both in the charging part as well as in the prayer, and also making parties defendant thereto Henry W. Long, Ed. L. Wartman, Fred. S. Lucius, N. A. Fort, and John L. Edwards, then constituting the board of county commissioners of Marion county, and who are appellants here. A subpoena was duly served upon said new defendants, who appeared specially on the 2d day of June, 1902, and filed a motion to vacate the order allowing complainant to amend his bill upon the grounds that said bill was not then pending as to the board of county commissioners, and had not been for more than one year prior thereto; that equity rule 42 had not been complied with; and that under said rule the court had no authority to grant complainant the right to revive his bill. On the 14th day of July, 1902, the court made an order denying said motion, and allowing said defendants until the rule day in August in which to plead, answer, or demur to the original and amended bills. On the 4th day of August, 1902, said board of county commissioners filed a paper in the office of the clerk of the circuit court, in which they referred to the answer filed by the former board of county commissioners to the original bill, and stated that they 'do now apply said answer to the bill as amended the same as if answered directly then.'
The complainant filed a replication to this answer on the 1st day of September, 1902, and on the 10th day of November next the court made an order referring said cause to Neil M. Allred, a master in chancery, with instructions to take the testimony of the parties and their witnesses, and report the same, with his findings of fact and the law of the case. Said master after due notice to the respective parties of the time and place, proceeded to take such testimony as was offered before him by the complainant; the defendants failing to offer any, but interposing various and sundry objections to the order of reference to said master, his authority to act, as well as to certain portions of the testimony. On the 5th day of December, 1902, said master filed his report of the proceedings before him. On the 1st day of January, 1903, the court made an order allowing...
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