McCullough v. McCullough
| Decision Date | 10 July 1945 |
| Citation | 156 Fla. 321,156 Fla. 326,23 So.2d 139 |
| Parties | McCULLOUGH v. McCULLOUGH. |
| Court | Florida Supreme Court |
Rehearing Denied Sept. 10, 1945.
Appeal from Circuit Court, Dade County; Marshall C. wiseheart judge.
Vincent C Giblin and W. W. Colson, Jr., both of Miami, for appellant.
Smathers Thompson & Maxwell, John G. Thompson, and L. S. Bonsteel all of Miami, for appellee.
The appellee-husband sued the appellant-wife for divorce charging her with habitual intemperance. An amendment to the bill was filed, but this pleading was stricken upon motion of the defendant, and subsequently withdrawn by the plaintiff; so testimony was eventually taken on the original bill and the answer, presenting the lone issue whether the defendant had been guilty of the misconduct alleged.
After all evidence had been introduced in behalf of both parties, except some testimony as to attorney's fees and in brief rebuttal the plaintiff sought permission to file an amendment to his bill averring in most general terms that his wife had been extremely cruel to him because of her indulgence in intoxicants and for the reason, too, that her 'neglect * * * to care for her * * * actions in public and the confusion, fussing, nagging and general home conditions made the marital obligation an intolerable burden * * *.' He charged that his health had been endangered by her misconduct.
Despite the protest of the defendant, the amendment was allowed, but the order to that effect was not filed until 7 June 1944, the day the special master made his report, nor was it entered until the following day. It was this amendment to which the master referred when he found: 'The allegations of the bill of complaint as amended are so general in their nature, except for the charge of habitual intemperance, that it is difficult for me to specify just what particular acts of defendant are relied upon by plaintiff as constituting extreme cruelty * * *.' After a painstaking and exhaustive digest of the testimony, he concluded that habitual intemperance had not been proved. This, then, disposed, adversely to the plaintiff, of the charge he had chosen as a basis for his suit. The master expressed the opinion that plaintiff should amend the bill to meet the proof, presumably of extreme cruelty, and then remarked that he was 'making this report upon the theory that plaintiff will, by permission of the Court, amend his bill of complaint * * *.' Nevertheless no further amendment was made, and the chancellor eventually heard and overruled all exceptions to the master's report and ratified, approved, and confirmed it.
Apparently, then, the master was sustained in his view that habitual intemperance on the part of the defendant had not been established; that the amended bill was insufficient except as to that charge; that an amendment should be made to comply with the proof of another ground for divorce. Yet no such amendment was ever offered. It is patent that master and chancellor agreed to the conclusion that the plaintiff could not prevail so far as the charge of habitual intemperance was concerned, and that phase of the controversy may be eliminated from further consideration. If the plaintiff was to be awarded a decree on the ground that his spouse had been extremely cruel to him he had to rely on the amendment, already condemned by the master, or present a new one--which he never did. It is difficult for us to understand the chancellor's attitude because in the same decree he confirmed the report, including the recommendation that an amendment to meet the proof be filed, and recited that 'the plaintiff [had] maintained by competent evidence all the material allegations of his bill of complaint as amended * * *,' thereby recognizing the amendment the master thought wholly insufficient.
The matter of amending pleadings is one within the judicial discretion, but of course the appellate court may review the ruling to determine whether there has been an abuse. It is true that there is an inclination on the part of the courts to be liberal in allowing amendments, to the end that fundamental justice may not be cast upon the reefs of technicality, but this liberality if too extreme may well result in injustice; so there must be some restraint on the extent of such amendments and the time within which they are permitted. Some courts have expressed the throught that this liberality is more pronounced in the early stages of a trial and gradually diminishes as the contest progresses. Todd v. Bettingen, 102 Minn. 260, 113 N.W. 906, 18 L.R.A.,N.S., 263. The amendment we have under study came very late in the trial. For some reason not explained to us, the order allowing it was withheld from the record until the master had reported. Meanwhile he suggested an amendment, obviously a new and sufficient one, to conform to the proof, and upon the assumption that this course would be followed he recommended divorce on the ground he anticipated would be included in the amendment.
Amendments to meet the proof are generally held not to be allowable if they change the thory of the case or the cause of action. This court in Griffin et al. v. Societe Anonyme La Floridienne J Buttgenbach & Co. et al., 53 Fla. 801, 44 So. 342, 351, recognized the procedure of amending to correspond with...
To continue reading
Request your trial
-
Petterson v. Concrete Const., Inc., of Lake Worth
...'fundamental justice may not be cast upon the reefs of technicality.' Wilensky v. Perell, Fla.1954, 72 So.2d 278; McCullough v. McCullough, 1945, 156 Fla. 321, 23 So.2d 139. Granting leave to amend rests in the sound discretion of the trial court but doubts should be resolved in favor of al......
-
Dunn v. Campbell
...materially varied, the matter could not be introduced in an amendment. We referred to that part of this opinion in McCullough v. McUllough, 156 Fla. 321, 23 So.2d 139, 140, and further quoted from the opinion: "We have discovered no case which authorizes such an amendment inconsistent with ......
-
Dimick v. Ray
...to the defendant's ability to prepare for the new allegations prior to trial on the merits. For instance, in McCullough v. McCullough, 156 Fla. 321, 23 So.2d 139 (1945), Frenz Enterprises, Inc. v. Port Everglades, 746 So.2d 498 (Fla. 4th DCA 1999), Designers Tile International Corp. v. Capi......
-
U.S. v. State, 65-147
...materially varied, the matter could not be introduced in an amendment. We referred to that part of this opinion in McCullough v. McCullough, 156 Fla. 321, 23 So.2d 139, 140, and further quoted from the opinion: "'We have discovered no case which authorizes such an amendment inconsistent wit......