Mitchell v. Mason

Decision Date04 March 1913
Citation65 Fla. 208,61 So. 579
CourtFlorida Supreme Court

Rehearing Denied April 1, 1913.

Appeal from Circuit Court, Duval County; R. M. Call, Judge.

Bill in equity by Harry Mason against David F. Mitchell and others. From a decree for complainant, Mitchell appeals. Affirmed.

See also, 62 Fla. 587, 58 So. 1039.

Where the trial court finds against defendant's contention that a deed was intended as a mortgage, the onus rests on defendant on appeal not only to rebut the presumption that the deed was what it appeared to be, but to establish that the trial court's decree is erroneous.

Syllabus by the Court


Members of the bar should never allow their zeal in watching over and protecting the interests of their clients, which, in itself, is most commendable, to cause them to lose sight of the fact that they are officers of the court, and that as such officers they owe certain duties to the court. They should strive to render the members of both the trial and appellate courts all possible assistance in discharging their arduous duties, and should be careful not to impose unnecessary burdens upon them.

In the preparation of transcripts, redundancies and repetitions should be avoided, as the copying or setting forth papers or proceedings more than once therein, when the same is not required, increases the costs unnecessarily, and causes the expenditure of additional time by the members of the appellate court which could be more advantageously employed.

The practice of assigning a large number of errors is reprehensible, as it tends to hinder, delay, and make difficult the administration of justice--the purpose for which courts of justice exist. That any one of the circuit judges in this state would commit 108 separate and distinct errors in the trial of a cause is rather a violent presumption, and, even if such should be the case, it would not be necessary to assign every one of such errors in order to secure a reversal of the judgment or decree, as the case may be, by an appellate court.

In passing upon a demurrer which is addressed to the entire bill, only such grounds of the demurrer as are applicable to the whole bill are properly before the court for consideration.

A demurrer which is addressed to the entire bill must be treated as a general demurrer, and should be overruled if there is any equity in the allegations of the bill, even though there are grounds of the demurrer which might prevail if the same were incorporated in a special demurrer, which was directed to the vulnerable parts of the bill.

The practice of filing a large number of objections and exceptions to a master's report is disapproved, as it is unfair to the trial judge, in that it casts an enormous and unnecessary burden upon him. It is almost inconceivable that any necessity could exist for filing objections to a master's report which cover 75 typewritten pages, and, in addition thereto, for filing 431 exceptions to such report, which cover 114 typewritten pages. In such a case the trial judge might well refuse to pass upon any of the objections or exceptions until they had been reduced to a reasonable number.

In framing assignments of error based upon the sustaining of exceptions to a master's report, there is no occasion to frame a separate assignment as to the sustaining of each ground of exception, especially when the trial judge did not undertake to rule upon each ground, but simply sustained the exception. It is sufficient to frame an assignment upon each of the exceptions sustained, review of which is sought.

In a suit in equity, as in an action at law, the issues to be tried and determined are made by the pleadings, and all pleadings should be characterized with certainty, clearness and conciseness, in order that the point or points in controversy be evolved and distinctly presented for decision the object of all judicial proceedings being to ascertain and decide the disputed points.

It is an established rule of chancery practice, and of pleading and practice generally, that the allegata and probata must correspond. However full and convincing may be the proof as to any essential fact, unless the fact is averred, proof alone is insufficient. All the evidence offered in a case should correspond with the allegations and be confined to the issues.

When a replication is filed to an answer, it thereby puts in issue all the matters alleged in the bill and not admitted in the answer, as well as those matters contained in the answer which are not responsive to the bill.

When the answer concludes with the usual general denial found in such a pleading, it is sufficient to make an issue on material allegations in the bill not admitted in the answer and to which no especial response is made. Such statement cannot be taken as admitted to be true, but must be proved by at least a preponderance of the testimony.

Matters set up in the answer which are not responsive to the bill, as matters set up by may of avoidance, must be proved by the defendant; and the burden is upon him to establish such matters by a preponderance of the testimony.

A sworn answer, denying the allegations in the bill which are essential to sustain the case of complainant and entitle him to relief, is evidence in favor of defendant and conclusive, unless overcome by the testimony of two witnesses, or of one witness corroborated by other circumstances which are of greater probative weight than the answer, provided that the oath to the answer has not been waived, and the answer is directly and positively responsive to the material allegations of the bill.

In a suit in equity for the enforcement of a mortgage lien, where a defendant admits in his answer the allegation of the bill that a certain deed, absolute on its face, was executed by him, but seeks to avoid the force and effect of such instrument by claiming that it was in reality intended as a mortgage, this, being new matter not responsive to the allegations of the bill, must be established by such defendant by a preponderance of the testimony; the burden of proof being cast by the law upon him.

Where the trial court has found against the contention of the defendant that a deed, absolute on its face, was intended to operate as a mortgage, upon an appeal by the defendant from such decree, the onus rests upon the appellant, not only to rebut the presumption that the title as appearing in the written instrument is in perfect accordance with the intention of the parties, but he must also establish to the satisfaction of the appellate court that the holding or decree of the court below adverse to his contention is erroneous.

Affirmative relief cannot be decreed in favor of a defendant, except in matters of accounting, upon the facts stated in the answer. Where a defendant seeks affirmative relief, he should file a cross-bill; and if he seeks an accounting or any relief from one who is not a party to the proceedings he should make such person one of the defendants to the cross-bill.

With the wisdom or folly of contracts which persons who are sui juris may make, the courts have no concern.


D. C. Campbell, of Jacksonville, for appellant.

Alex. St. Clair-Abrams, of Jacksonville, for appellee.



Mr Chief Justice White once tersely said to the writer that 'judicial duty means simply an infinite capacity for taking pains and great patience.' Even so, as Mr. Justice Cobb said in Kelly v. Strouse, 116 Ga. 872, text 899, 43 S.E. 280, text 291, 'courts of last resort are composed of human beings, and are liable to make mistakes, both in rulings and reasoning, and unguarded and ill-considered expressions are as apt to emanate from them as from others.' In quoting this statement in his dissenting opinion in White v. State, 59 Fla. 53, text 60, 52 So. 805, text 807, the writer hereof added that this must necessarily follow from the fact that they are human beings, therefore not infallible, but subject to like infirmities and shortcomings as other men. This was followed in Seaboard Air Line Ry. v. Rentz, 60 Fla. 429, text 437, 54 So. 13, text 16, with the further comment that the judges, both of the nisi prius and appellate courts, being mortals, should not be expected to have greater capacity for work or powers of endurance then members of the bar. Judges have their limitations, even though patience, forbearance, and good nature are supposed to be virtues which peculiarly belong to them. We are induced to make these observations because in the instant case we are confronted with a transcript of the record which contains 2,277 typewritten pages, which, as Caesar says of Gaul, is divided into three parts. Strictly speaking, we should say five parts, as there are two amendments to the transcript, containing matters inadvertently omitted. We are also favored with briefs by the respective parties, containing in the aggregate 517 typewritten pages. We memtion these facts in order to show something of the labor which has devolved upon us and the amount of time which the mere physical act of reading these documents must necessarily require. We would again call the attention of the members of the bar to what we said in Seaboard Air Line Ry. v. Rentz, supra, as to the object of judicial proceedings, and, though in that case we were speaking of the pleadings in an action at law, much of what is said applies with equal force to a suit in equity. We would especially like to impress upon them what we said as to the respective duties and relations of the members of the bench and bar, and as to the necessity for their co-operation in order that justice may be administered--the purpose for which courts of justice exist. Counsel should never allow their zeal in...

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