Mitchell v. Mason

• Decision Date: 24 July 1925
• Citation: 90 Fla. 201,106 So. 430
• Parties: MITCHELL v. MASON et al.
• Court: Florida Supreme Court

106 So. 430

90 Fla. 201

MITCHELL v. MASON et al.

Florida Supreme Court

July 24, 1925

Suit by David F. Mitchell against George H. Mason and others. From an order vacating a decree pro confesso as against defendant Lillian Mason Sperry and another, complainant appeals.

Affirmed.

See also, 105 So. 404.

Syllabus by the Court

SYLLABUS

Pleading held to have effect of interposing previous demurrer to supplemental bill. In an equity suit, where a demurrer in due form is seasonably interposed to a bill of complaint, and subsequently, but before a ruling on the demurrer is made, a supplemental bill is filed, in response to which the demurrant files a pleading in the following language 'Comes now the defendants named in the supplemental bill herein, and for demurrer to the supplemental bill filed herein, interpose the demurrer heretofore filed herein by these defendants on April 3, 1922, to the original bill herein,' the effect of the filing of the latter pleading is to interpose the previous demurrer to the supplemental bill, although such practice is not commended.

Courts of general equity jurisdiction have duty on own motion to correct order or decree, unless it, by passage of time, or for some other reason, has passed beyond control of court. Courts of general equity jurisdiction possess the inherent power, and it is their duty, of their own motion, to correct any order or decree made or entered improvidently or by inadvertence of the court, unless such order or decree by the passage of time, or for some other reason, has passed beyond the control of such court.

Appeal from Circuit Court, Duval County; Daniel A Simmons, judge.

COUNSEL

David F. Mitchell, in pro. per.

Knight & Adair, of Jacksonville, for appellees.

OPINION

STRUM J.

On the 26th day of January, 1922, appellant, as complainant below, brought his bill of complaint against several defendants. On April 3, 1922, appellees. Lillian Mason Sperry and John A. Sperry, two of the defendants, filed their demurrer to said bill of complaint, which demurrer appears to be duly certified and verified in accordance with the rule. By leave of court, and prior to a ruling on the demurrer, appellant filed a pleading styled as a supplemental bill on July 18, 1922. Whether his pleading is in law a supplemental bill or an amended bill is not now before us for consideration. It was treated by the court below and the parties as a supplemental bill. In the order allowing the filing of the supplement bill, the chancellor required the defendants, amongst whom were the said appellees, Lillian Mason Sperry and John A. Sperry, to plead to said supplemental bill on or before the rule day in August, 1922. On August 7, 1922, the rule day, the appellees last named, through their solicitors, filed the following pleading:

'Comes now Lillian Mason Sperry and John A. Sperry, two of the defendants named in the supplemental bill herein, and for demurrer to the supplemental bill filed herein, interpose the demurrer heretofore filed herein by these defendants on April 3, A. D. 1922, to the original bill herein.'

On August 9, 1922, upon motion of the complainant, the chancellor entered a decree pro confesso against the above-named defendants Lillian Mason Sperry and John A. Sperry and others 'for failure to plea, demur, or answer to the said supplemental bill in said cause.'

On August 17, 1922, the chancellor made and entered the following order:

'The above decree pro confesso having been inadvertently entered as to the defendants Lillian Mason Sperry and John A. Sperry, the same is vacated as to the said defendants, they having filed their demurrer before said decree pro confesso was entered.'

This order seems to have been entered by the chancellor of his own motion. From the latter order this appeal is taken.

Rule 39 of the circuit courts in equity actions, provides, in substance, that, when for any reason a supplemental bill, or a bill in the nature of a supplemental bill, is filed in a cause, 't...