Nystrom v. Nystrom, 109
| Decision Date | 10 October 1958 |
| Docket Number | No. 109,109 |
| Citation | 105 So.2d 605 |
| Parties | Frances NYSTROM, Appellant, v. Herman J. NYSTROM, Appellee. |
| Court | Florida District Court of Appeals |
McLeod, Sutton & Brown and E. Hood Wilkerson, Orlando, for appellant.
W. B. Hunter and R. P. Hamlin, Tavares, and C. Harold Hippler, Eustis, for appellee.
Appellant wife, defendant below, brings this interlocutory appeal to review two orders entered by the Chancellor below in a divorce action instituted by appellee husband. The parties will be referred to as they appeared in the lower court.
The plaintiff husband's complaint seeking a divorce on two grounds was filed November 5, 1955. An intervening motion having been disposed of, defendant wife filed her answer on March 10, 1956; she denied in extenso the material allegations of the complaint, and, in addition, by counterclaim sought separate maintenance, suit money and other relief. Plaintiff's reply, in which he denied the material allegations of the counterclaim, was filed April 2, 1956.
Nothing further occurred in the cause until June 29, 1956, when the Chancellor, finding the cause 'now at issue and ready for the taking of testimony,' appointed a special master to take the testimony and other proofs and to report same to the court, together with his findings at law and of fact and his recommendations. With no further findings, the order also extended the time for taking testimony for a period of sixty days from its date. As noted below, this order apparently was entered without notice to defendant.
On July 2, 1956, defendant filed a motion for leave to file an amendment to her answer or an amended answer, as she might elect. This motion was apparently brought on for hearing by the plaintiff on August 13, 1956, the order entered that date reciting that defendant was given due and regular notice of the hearing and failed to appear. The motion was denied.
On October 13, 1956, notice was addressed to defendant's attorneys that the cause had been set for taking of testimony on final hearing on October 20, 1956. Immediately thereafter, on October 18, 1956, defendant filed a motion containing two paragraphs, the first petitioning the Chancellor to rescind the order appointing the special master, and the second asking for a hearing, on notice, for the appointment in said cause of some other attorney to perform such functions in the cause. The reasons for the motion were stated to be that the special master was co-counsel with plaintiff's attorney in another cause, one of some notoriety; that said master was appointed without notice to, or hearing of, the defendant; and that defendant was entitled to a trial of issues of law and fact in her case before a master or judge free of any influence that might consciously or unconsciously affect him.
Apparently no action was taken until about August 28, 1957, when defendant's counsel were notified that the last-described motion would be called up for hearing before the special master on September 3, 1957. We are told that neither defendant nor her counsel appeared at this hearing. On the hearing date, the special master entered an order in which he recited that counsel for the defendant failed to appear in support of said motion and, finding that the allegations of the motion did not form a proper basis for his alleged disqualification, he denied the motion to cancel his appointment.
On the same date, September 3, 1957, the Chancellor, again without notice to defendant, entered an order reciting that there was no order authorizing the to be heard before him and the same was approved and confirmed. This order of the Chancellor is one of the two herein appealed from.
On September 4, 1957, plaintiff gave formal notice to defendant that the cause had been set for taking of testimony on final hearing before the special master on September 20, 1957. So far as we are advised, there was no orderauthorizing the taking of testimony after the sixty-day extension ordered on June 29, 1956.
On September 12, 1957, defendant filed a motion for decree in her favor on the pleadings. The motion was amended to correct the dates in certain allegations and upon hearing, September 17, 1957, before a substitute Chancellor, the motion and amended motion were denied. The order denying her a decree on the pleadings is the second order sought to be reviewed in this appeal.
Defendant, as appellant, contends that the lower court erred in denying her motion for decree on the pleadings, the time for taking testimony having long since expired. She further contends that the order confirming the denial of her motion to cancel the appointment of the special master had the effect of requiring her to submit her cause to a special master to whose appointment she had not consented.
On the other hand, the plaintiff, as appellee, contends that the defendant's motion to file an amended answer made the cause no longer at issue, and testimony could not have been taken until said motion was denied on August 16, 1956; that the sixty-day period from that date expired October 16, 1956, and three days later the defendant's motion to cancel the order appointing the special master again placed the cause no longer at issue until that motion was disposed of; therefore, it is contended that the lawsuit never reached the point at which the defendant could properly move for a judgment on the pleadings upon the ground that the time for taking testimony had expired and that if there were brief interludes when such motion would have been proper, the defendant each time waived her right so to move by electing to file further pleadings in the cause.
As to defendant's second point, concerning the denial of her motion to cancel the appointment of the special master, the plaintiff contends that if the defendant had objected to the referral of the cause to any master, her point might be worthy of consideration, but that the motion as made simply objected to the particular person acting as special master and recognized the propriety of the appointment of a special master by asking for the appointment of some other attorney to perform the functions contemplated by the order.
We will first consider the denial of defendant's motion for a 'decree on the pleadings,' contained in the order entered September 17, 1957, since if this is decided for appellant-defendant, the other point need not be considered.
At the outset we must call attention to the distinction between the action taken in this and other similar cases, where the motion is referred to as for final hearing on bill and answer, the time for taking of testimony having elapsed, and those cases where the motion is for a decree on the pleadings under Rule 1.11(c), Rules of Civil Procedure (formerly Equity Rule 33(c)), 30 F.S.A. See Kooman, Florida Chancery Pleading and Practice, Secs. 131 and 132. As was explained in City of Miami v. Miami Transit Company, Fla.App. 3d Dist. 1957, 96 So.2d 799, Rule 1.11(c) contemplates the motion for decree on the pleadings as a pre-trial step.
On the other hand, aside from the provisions of Rule 1.11(c) and its predecessor, it was established in Strong v. Clay, Fla.1951, 54 So.2d 193, that under former Equity Rule 46, now succeeded with little change as Rule 3.13, Rules of Civil Procedure, 31 F.S.A., when the period allowed for the taking of testimony had expired, either party has the right to set the cause down for final hearing on bill and answer, and thus to bring the cause to a conclusion. Further, in Muller v. Maxcy, Fla.1954, 74 So.2d 879, the Supreme Court of Florida pointed out that by so moving, a party acquired a substantial right, of which he should not be deprived except upon clear grounds of equity and right. In City of Miami v. Miami Transit Company, supra (96 So.2d 803), such hearing under Rule 3.13 was characterized as 'one by which the moving party seeks a final hearing and decree on the merits.' Kooman, Id., Sec. 132.
It is appellee-plaintiff's contention that defendant's motions; first, for leave to amend her answer, and second, to rescind the order appointing the special master, had the effect of withdrawing the cause from being at issue, so that the time for taking testimony never substantially elapsed. As...
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