Needle v. A. F. Kisinger & Associates, Inc., 1572

• Decision Date: 24 February 1960
• Docket Number: No. 1572,1572
• Citation: 118 So.2d 35
• Parties: Joseph J. NEEDLE and Hampton Homes Corporation, Inc. of Cocoa, a Florida corporation, Appellants, v. A. F. KISINGER & ASSOCIATER, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 35

118 So.2d 35

Joseph J. NEEDLE and Hampton Homes Corporation, Inc. of Cocoa, a Florida corporation, Appellants, v. A. F. KISINGER & ASSOCIATER, INC., a Florida corporation, Appellee.

No. 1572.

District Court of Appeal of Florida, Second District.

Feb. 24, 1960.

Shepard & Dykes, Cocoa, for appellants.

Kafer & Stevenson, Winter Park, for appellee.

KANNER, Judge.

A motion of the defendants for decree on bill and answer was set down and heard by the chancellor, who denied the motion, declining to consider it on the merits but rather setting the cause down for the taking of testimony. The ruling thus entered has prompted this interlocutory appeal.

This is an equity suit to establish and enforce an alleged mechanic's lien for surveying services, to which the defendants counterclaimed, alleging breach of contract by the plaintiff and seeking recovery of damages.

The case became at issue on March 13, 1959. During the sixty day period which followed, no testimony was taken by either party, nor was the cause set for trial. On June 16, 1959, ninety-three days after the cause became at issue, counsel for plaintiff wrote a letter to the trial judge requesting a date for the trial of the cause and suggesting that some convenient date be set in the early fall of 1959. A copy of this letter was mailed to the attorneys for the defendants. On June 18, two days later, the court by letter addressed to counsel for plaintiff, set September 16, 1959, for time of hearing. Copy of this letter was not mailed to defendants' counsel.

On June 19, 1959, defendants through their counsel filed motion for decree on bill and answer, setting forth that the time for taking testimony had expired, that no enlargement of time had been applied for, and that there was an absence of good cause for not taking testimony within the prescribed period. This motion was set for hearing before the court on July 30, 1959, due notice being given to plaintiff's counsel. On that date counsel for both parties appeared. The court heard the matter and on August 17, 1959, entered the order appealed from, denying the motion and ordering that the cause be heard at the previously assigned time of September 16, 1959.

The denial of the motion by the court was not predicated on consideration of the merits of the motion for decree on bill and answer, but was founded on the doctrine of judicial discretion with respect to the equity rule regarding time for taking of testimony. The question then to be resolved is whether the chancellor, under the recited circumstances, in the exercise of sound judicial discretion, exceeded his power.

Adverting to Equity Rule 3.13, Rules of Civil Procedure, 31 F.S.A., which prescribes the limitation period within which testimony must be taken after the cause has arrived at issue, we observe that:

'When any chancery cause shall be at issue and shall not have been set for trial before the court, the court of its own motion or upon application of either party after due notice to the opposite party, shall enter an order fixing the time within which the testimony of the parties shall be taken. After the entry of such an order, the court may, upon good cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. In the absence of any order by the court extending or limiting the time otherwise, two months from the time a cause is at issue and no longer shall be allowed for the taking of testimony in any cause, unless the case has been set for trial before the court. The time for taking testimony may be extended by special order of the court in its discretion or by written...