Phillips v. Lindsay

• Decision Date: 19 September 1931
• Citation: 136 So. 666,102 Fla. 935
• Parties: PHILLIPS et al. v. LINDSAY et al.
• Court: Florida Supreme Court

136 So. 666

102 Fla. 935

PHILLIPS et al. v. LINDSAY et al.

Florida Supreme Court

September 19, 1931

Commissioners' Decision.

Suit by Alice M. Lindsay, joined by her husband, against William L Phillips, joined by his wife, and another. From the decree rendered, the defendants appeal.

Affirmed.

Syllabus by the Court.

SYLLABUS

Rules 85 and 86 of the Rules of Circuit Court Equity Actions provide for the setting of causes down for hearing by either party after the cause is at issue and the time for taking testimony has elapsed, also after testimony has been taken and the complainant may as of course set the cause down for hearing on bill and answer. It is essential to orderly procedure that the rules prescribed for the government of the court should be observed.

Under section 4907(3121), Compiled General Laws 1927, unless the affirmative averments of an answer assert a set-off or counterclaim, no reply is required without special order of the court or judge, and the cause is at issue upon the filing of such answer.

When a party asserts that observance of a rule prescribed for the transaction of matters in court has been waived, the burden is upon him who asserts such waiver to establish it.

It is within the sound judicial discretion of the chancellor to dismiss without prejudice a bill of complaint in equity thereby enabling the complainant to relitigate the matter in controversy, and an appellate court will not adjudge such ruling to be error, unless it is made clearly to appear that the judicial discretion thereby exercised has been abused to the material detriment of the party affected by the ruling.

A court of equity may not dismiss an equity cause without prejudice if the defendant has entitled himself to affirmative relief or to a hearing and disposition of the case on the merits, or has acquired some substantial right in the cause, or will be specially prejudiced by a dismissal, or where unnecessary and prolonged litigation is apparent, or an agreement will be violated, or where it is inequitable.

When an equity cause is heard upon bill and answer, the averments in the answer of new affirmative matter, not responsive to the bill, cannot avail the defendants.

When a defendant sets up usury as a defense, the burden of proof is on him to establish it.

Irregularities in chancery practice at one's instance and by his consent are not available to reverse a final decree against him. Appeal from Circuit Court, Pinellas County; T. Frank Hobson, judge.

COUNSEL

Jefferson D. Stephens, of St. Petersburg, for appellants.

L. K. Caruthers, of Tampa, for appellees.

OPINION

DAVIS C.

The appellees, Alice M. Lindsay, joined by her husband, J. N. Lindsay, as complainants in the court below filed a bill for the foreclosure of a mortgage given to complainant, Alice M. Lindsay by the appellants, William L. Phillips and wife, Ruby D. Phillips. The appellant Weaver-Loughridge Lumber Company was also made a party defendant to the bill.

The defendants William L. Phillips and Ruby D. Phillips, by their amended answer, interposed the defense of usury, and averred that complainants had forfeited both principal and interest, and prayed that it be so declared by decree of the court. The defendant Weaver-Loughridge Lumber Company also answered the bill, and therein denied the right of complainants to the relief prayed for in the said bill, and upon information and belief alleged 'that amount of said alleged note and mortgage contains excessive, illegal and usurious interest or bonus prohibited by the laws of the State of Florida, which said excessive, usurious, and unlawful interest renders the said alleged note and mortgage illegal, void and uncollectable.'

The answer of Weaver-Loughridge Lumber Company set up, presumably as a counterclaim, the execution and delivery to it, said Weaver-Loughridge Lumber Company, by the defendants, William L. Phillips and Wife, Ruby D. Phillips, of a note and mortgage. This mortgage purports to create a lien upon the property described in the mortgage to complainant Alice M. Lindsay, and it appears upon the face thereof that it is 'subject to a first mortgage' in favor of Alice M. Lindsay, giving the date, amount secured, and due date, all of which tallies with complainant's mortgage, but the answer contains a denial that the Weaver-Loughridge Lumber Company's mortgage is inferior to complainant's mortgage.

The Weaver-Loughridge Lumber Company prayed that the mortgage of complainant be declared void and nonenforceable; that, should the court find that complainant's mortgage is not void and is collectable, said defendant be declared to have a second lien on the property involved; that, if the court should find that complainant's mortgage is nonenforceable, the defendant Weaver -Loughridge Lumber Company have a foreclosure of its mortgage in the usual way to satisfy the debt due said defendant, together with costs, taxes paid, and interest, but, in the event it should be held that said defendant's mortgage is a second lien, the proceeds of sale over and above amount found to be due complainants, or so much as may be necessary, be applied to the debt due the defendant Weaver-Loughridge Lumber Company and for general relief.

Weaver-Loughridge Lumber Company, in its answer, did not pray for process against its codefendants William L. Phillips and his wife, Ruby D. Phillips, and the transcript does not show that they were served with a copy of such answer as provided by section 4907(3121), Compiled General Laws of Florida 1927, or that they, William L. Phillips and wife, Ruby D. Phillips, filed a reply to the said counterclaim, or that a decree pro confesso had been entered against William L. Phillips and wife on the counterclaim.

On the 11th day of December, 1928, complainants filed a general replication to 'said answer,' and on May 24th following the court made an order enlarging the time for taking testimony to and including the 11th of October 1929. On October 26, 1929, motion was served on solicitor for the defendants notifying them that a date had been secured for 'final hearing' of the cause on November 5, 1929, on which date the parties appeared before the chancellor and the defendants objected to the taking of testimony and moved the court to dismiss the suit.

The court, it appears, stated verbally that he would grant the motion, but, before entering it, he would determine whether or not such dismissal would be 'without prejudice.' On April 22, 1930, an order was filed dismissing the cause without prejudice. The record is silent as to whether or not the cause had been set down for a hearing, but it appears from statement of the chancellor that it had not been set down for hearing on bill and answer. It seems to be agreed here that the question involved upon this appeal turns upon the insertion of the words 'without prejudice' in the decree of dismissal.

'Rules 85 and 86 of the Rules of Circuit Court Equity Actions provide for the setting of causes down for hearing by either party after the cause is at issue and the time for taking testimony has elapsed; also after testimony has been taken and that the complainant may as of course set the cause down for hearing on bill and answer. Those rules provide how such...