Lovett v. Lovett

• Decision Date: 29 March 1927
• Parties: LOVETT et al. v. LOVETT et al.
• Court: Florida Supreme Court

112 So. 768

93 Fla. 611

LOVETT et al. v. LOVETT et al.

Florida Supreme Court

March 29, 1927

Rehearing Denied May 11, 1927.

In Banc.

Suit by D. S. Lovett and others against Mamie Lovett Fletcher and others for partition. From the decree below, D. S. Lovett and another appeal. Reversed, unless errors pointed out are cured, and remanded.

Syllabus by the Court

SYLLABUS

Party proceeding without objection with hearing in equity court of controversy, jurisdiction of which may be given by consent may not thereafter complain as to jurisdiction. When the parties, without objection or question as to the mode of procedure, go on to a hearing, and a court of equity hears and determines the controversy, which is of such a character that jurisdiction may be given by consent, neither party should thereafter be heard to complain as to the court's jurisdiction.

Before exercising jurisdiction of subject-matter, parties and subject-matter must be brought before court in manner giving it power to act. Before the potential jurisdiction of the subject-matter--the power to hear and determine--can be exercised in a particular case, it must be lawfully invoked and called into action; that is, the parties and the subject-matter of the particular case must be brought before the court in such a way that it acquires control and power to act.

Generally to give jurisdiction of subject-matter, there must be right in dispute, proceeding properly commenced, process served, or property within jurisdiction, whose owner is legally notified and given reasonable opportunity to be heard. Generally speaking, there must be a right in dispute between two or more parties; a proceeding commenced under the proper rules of law; process must be served on the opposite party or parties in order that they may have an opportunity to be heard, or the property, if that be the subject-matter of the action, must be within the court's jurisdiction, and the owner or person having the right to claim it, or to be heard must be notified as required by law of the pendency of the proceeding, and given a reasonable opportunity to be heard.

Court's power remains at rest until called into action by suitor. The jurisdiction and power of the court remain at rest until called into action by some suitor; it cannot, by its own action, institute a proceeding sua sponte.

Generally court's action must be started by legal pleading presenting cause of action and requesting exercise of court's power; ordinarily, judgment of court having jurisdiction of parties on matter not presented by pleadings is of no effect. As a general rule, the action of a court must be called into exercise by pleading and process prescribed or recognized by law, and such pleading, be it a declaration, bill of complaint, petition, cross-bill, or counterclaim, must present a subject-matter or cause of action in some form, and must request, either expressly or by necessary implication, the exercise of the power of the court; and if a court renders a judgment where it has jurisdiction of the parties, but upon a matter outside of the issues presented by the pleadings, it would ordinarily be held arbitrary and of no effect, as being outside the jurisdiction of the subject-matter of the particular case and upon which the parties had had no opportunity to be heard.

Pleading stating at least inferentially each material fact necessary to warrant court's action, generally authorizes exercising of jurisdiction without being sufficient on demurrer. The pleading, bringing a subject-matter before the court sufficiently to authorize the exercise of its jurisdiction, need not necessarily be sufficient in law to withstand the test of demurrer, but as a general rule it must state, at least inferentially, each material fact necessary to warrant the court to deliberate thereon and grant the relief accorded.

'Jurisdiction of subject-matter and parties' generally implies power to adjudicate such class of cases, a bringing before court of necessary parties, a sufficient pleading, and if cause is in rem court must have power or control over res. When it is said that a court has jurisdiction of the subject-matter and the parties to a cause, this implies, generally speaking: (1) That the court has jurisdictional power to adjudicate the class of cases to which such case belongs; (2) that its jurisdiction has been invoked in the particular case by lawfully bringing before it the necessary parties to the controversy; (3) the controversy itself by pleading of some sort sufficient to that end; and (4) when the cause is one in rem, the court must have jurisdictional power or control over the res which is the subject of the controversy.

In partition suit, defendant can by 'answer' set up failure to ask partition of entire tract; ordinarily, bill for partition should include all of lands in cotenancy; if bill for partition does not include all lands of cotenancy, any defendant may call such omission to court's attention and insist thereon; separate answer, asking partition of all land owned by parties as tenants in common, was answer in nature of cross-bill (Rev. Gen. St. 1920, § 3120). Where a bill seeks a partition of part of a tract of land held in cotenancy, a defendant cotenant can, by way of answer, which is ordinarily a defensive pleading, set up as a defense the failure to pray for partition of the entire tract. Ordinarily, such a suit should include all of the lands of the cotenancy, and if it does not do so, any party defendant may take appropriate action to bring such omission to the attention of the court and insist that the omitted land be embraced in the suit and that the persons be made parties thereto whose presence is necessary to the proceeding. Whether this rule would apply where the omitted lands constitute a separate and noncontiguous tract from those described in the bill, though owned by the same cotenants, is not decided.

Where answer to bill for partition alleges omission of part of land held in cotenancy, chancellor may require amendment of bill, or in default thereof dismiss it (Rev. Gen. St. 1920, § 3118). Where, to a bill for partition, the defense is set up by way of answer that the bill omits a portion of the tract of lands held by the same cotenancy as that alleged in the bill, the chancellor may require the complainant to so amend his bill as to include the additional lands, or in default thereof dismiss the bill.

Where answer, by cross-bill, asks partition of lands omitted by bill, court should require amendment of bill or other parties should be given opportunity to be heard by notice or service of process; answer asking partition of lands omitted by bill is insufficient as cross-bill, unless it makes others defendants thereto and asks for proper service against them; if answer asking partition of lands omitted by bill is regarded as counterclaim, other defendants should be served with copies and given opportunity to reply and to be heard (Rev. Gen. St. 1920, §§ 3120, 3121). But where, in a suit for partition, a defendant cotenant sets up by answer not as a defense against the bill, but in the nature of a cross-bill or counterclaim, the existence of additional lands of the cotenancy omitted from the bill of complaint, and prays the court for the partition of such additional lands along with the lands described in the bill, the court should require the complainant to amend his bill so as to include such additional lands, or the other parties to the suit should be given an opportunity to be heard upon the prayer set up in the answer, upon appropriate notice or service of process as required by law, before the court takes action upon such prayer relating to such additional subject-matter. If such answer be regarded as a cross-bill, it is insufficient unless it makes the other parties defendants thereto and prays for proper service against them, and if it be regarded as a counterclaim, under sections 3120, 3121, Rev. Gen. Stats. 1920, the other defendants should be served with copies of same and given an opportunity to reply thereto and be heard thereon as required by such statutes.

Cross-bill should be confined to original bill's subject-matter, making proper persons, including complainants, parties defendant thereto, and pray for process against them; new and distinct matters, not germane to subject-matter of original bill, cannot be introduced by cross-bill. A cross-bill should state the purport of the original bill, must be confined to such new facts and issues as relate to the subject-matter of the original bill, should make all proper persons entitled to be heard thereon, including the complainants and the cross-complainant's codefendants in the original bill, parties defendant to the cross-bill, and pray for proper process against them, which process should be duly served. New and distinct matters, not germane to the subject-matter of the original bill, cannot be introduced by cross-bill.

Generally, relief may not be obtained by cross-bill which can be procured by insisting on filing proper original bill or proper amendment thereof. It is not generally permissible by cross-bill to obtain relief, which the defendant can procure by insisting on the filing of a proper original bill, or proper amendment of an original bill already filed.

Equity's jurisdiction in partition is of ancient origin, but practice therein is more or less statutory (Rev. Gen. St. 1920, §§ 3202-3209). While the jurisdiction of equity to adjudicate suits for partition is of ancient origin and well established, independent of statute, our practice in dealing with partition suits is more or less statutory. See sections 3202-3209, Rev. Gen. Stats. 1920.

Proper way to bring lands before court in partition suit is by bill in...