Schupler v. Eastern Mortg. Co.

• Decision Date: 23 January 1948
• Parties: SCHUPLER et ux. v. EASTERN MORTG. CO.
• Court: Florida Supreme Court

33 So.2d 586

160 Fla. 72

SCHUPLER et ux. v. EASTERN MORTG. CO.

Florida Supreme Court

January 23, 1948

E. B. Donnell and Moses Schupler, of West Palm Beach, for petitioners.

A. S Bussey, of Palm Beach, for respondent.

BARNS, Justice.

Petitioners-defendants seeks certiorari to review an order of the chancellor granting plaintiff's-respondent's motion to strike Paragraphs 5, 6, 7 and 8 of a joint and several answer ^[1] filed by them, addressed to Paragraphs 6, 7, 8 and 9 of a bill ^[2] of complaint and an order granting a motion to strike a counterclaim. The bill seeks the foreclosure of a purchase money mortgage executed by the defendants.

It is important for petitions for certiorari to show with particularity the harmful error. If the matters supporting the charge of error are too lengthy to be copied into the petition in haec verba then they should be plead according to their tenor and effect appropriate page references to the record.

The petitioners' answer to the Bill as contained in Paragraphs 1 to 10 goes to a traverse of bill and no wise attempts to set up any facts in the nature of an avoidance nor does the 'answer' (in form) attempt to set up any facts relating to a superior right in the defendants over the rights of the plaintiff.

Within the 'answer' is contained a claim in the 'form' of a counterclaim, the substance of which goes directly to the avoidance vel non of plaintiff's bill. The chancellor sustained the plaintiff's-appellee's motion to strike this 'counterclaim,' of which review is likewise sought.

From 1915 until the adoption of the 1931 Chancery Act, Ch. 63 F.S.A., a motion to strike was permitted as a means of testing the sufficiency of an answer presenting an affirmative defense or counterclaim, viz.: 'If an answer set up by an affirmative defense, set-off or counter-claim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient, but amendable, the court may allow an amendment upon terms or strike out the matter.' Sec. 3122, R.G.S.

For a decision under the statute, see Dougherty et al. v. Commercial Court Holding Company, 1932, 104 Fla. 595, 140 So. 470 (per Justice Terrell).

But we now have no such practice, and our statute provides that: 'The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, * * *.' Sec. 63.34, F.S. 1941, F.S.A.

Our statute law relative to striking portions of either a Bill or an Answer provides: 'Exceptions to bills, answers and other pleadings for scandal, impertinence or irrelevancy are abolished, but the court may, upon motion to strike or upon its own initiative, strike out any redundant, impertinent, irrelevant or scandalous and impertinent matter which is prejudicial to the opposing party, upon such terms as the court shall think fit.' Sec. 63.23, F.S. 1941, F.S.A.

'Matter should not be stricken from a pleading under the foregoing statutes unless it is wholly irrelevant, or is otherwise improper, and can have no bearing on the equities of the case and no influence upon the decision either as to the relief to be granted or the allowance of costs. * * *' Kooman's 'Florida Chancery Pleading and Practice,' p. 251.

And for more authorities see the notes to Section 23 of Florida Chancery Act, annotated by McCarthy.

In equity, matter relevant and material to the equities may be stated in an answer, and it is error to strike such matter even though it would affect the equities only to the extent of the assessment of costs. The test is not whether the answer states a defense but whether the matter is relevant or material: 'If matter contained in an answer in an equity cause is relevant or can have any influence in the decision of the subject-matter of the the controversy, it is not impertinent.' Trustees Internal Improvement Fund v. Root, 63 Fla. 666, 58 So. 371, 378; Jones v. Hiller, 65 Fla. 532, 62 So. 583; Cummer Co. v. Yager, 75 Fla. 729, 79 So. 272; Boca Grande Inv. Co. v. Blanding, 77 Fla. 536, 81 So. 886.

'If the part of an answer excepted to is relevant, or can have any influence in the decision of the suit either as to the subjectmatter of the controversy, the particular relief to be given, or as to the costs, it will not be held impertinent.' Robertson v. Dunne, 45 Fla. 553, 33 So. 530.

'Answer is not 'impertinent' which is relevant, or which can influence the decision of the suit, either as to the subjectmatter of the controversy, the particular relief to be given, or as to costs.' Holzendorf v. Terrell, 52 Fla. 525, 42 So. 584.

The stricken Paragraphs 5, 6, 7 and 8 of the Answer do not appear as redundant, impertinent, irrelevant, or scandalous, or such matter as would wrongfully impair the determination of the equities of the parties concerning the controversy. In striking same, we conclude the chancellor erred.

Re: Striking counterclaim:

The defendants, after having stated their defense to the Bill by 'Answer' presented further pleadings in the 'form' of a counterclaim. ^[3] The matters contained in this pleading having the 'form' of a counterclaim are in substance matters responsive to the Bill in the nature of an avoidance which might properly have been set forth in the Answer.

The chancellor struck a part of defendants' answer denominated as a 'counterclaim' wherein defendants admit the execution by the defendants, Schupler and wife, of the purchase money mortgage and notes plead by the bill of foreclosure (in which transaction the husband, Schupler, acquired title) and pleads that such, as a contract, was of no binding force and effect on the wife except as a release of dower; ^[4] that Joseph Schupler lost his title by a tax foreclosure by Palm Beach County, pursuant to Ch. 194, F.S. 1941, F.S.A.; ^[5] that the wife, out of 'her separate estate' purchased the property from the county and thereby acquired a title free and clear of all prior liens.

In our practice the 'motion to strike' parts of an answer is a substitute for an 'exception.' See Sec. 62.23, F.S.A., supra. It should not be treated as a demurrer because under the former practice, as well as under the present practice, a demurrer to answer was a thing unknown to chancery practice.

'Objections to affirmative defense. Exceptions to the answer do not perform the office of a demurrer in presenting the question whether the facts averred in the answer constitute a defense to the case made in the bill; and as it is not permissible to file a demurrer to an answer, if it is desired to submit the case on the questions of law arising on the answer, the only method is by setting down the case for hearing on bill and answer. If the defense is not good, the proof of it will be of no avail, and the complainant will have the full benefit of his objections at the hearing.' Fletcher's 'Equity Pleading and Practice,' P. 354.

Two-fold Nature of Answer: 'An answer in cases where relief is sought, properly consists of two parts, and serves a double purpose; First, that of answering the case as made by the bill; and, secondly, that of stating to the court the nature of the defense on which the defendant means to rely.' Fletcher's 'Equity Pleading and Practice,' P. 318.

It appears very evident that the pleader has confused defensive matters in avoidance with counterclaim, when, in fact, the distinction is great.

Upon motion of plaintiff, the court struck the counterclaim. Our statute for testing the sufficiency of a counterclaim provides: '* * * if an answer asserts a counterclaim and prays affirmative relief any cross-defendant may, upon due notice, test the sufficiency of the same by motion to dismiss the counter-claim. If found insufficient but amendable the court may allow an amendment upon terms, or dismiss the counter-claim.' Sec. 63.41, F.S.A.

'Motions to strike have long been recognized as one means of attacking pleadings for frivolity and impertinence and for palpable and serious defects in form. * * *' Kooman's 'Florida Chancery Pleading and Practice,' P. 250.

'* * * But a pleading in proper form should not ordinarily be stricken for insufficiency. Its sufficiency should be tested by motion to dismiss or other appropriate proceedings. * * *' Kooman's 'Florida Chancery Pleading and Practice,' P. 252.

Motion to Strike--Motion to Dismiss--distinguished: '* * * A motion to strike a bill of complaint or counterclaim should be distinguished from a motion to dismiss and the two remedies should not be indiscriminately applied as they are governed by essentially different rules of procedure. A bill or counterclaim in proper form duly filed should not be stricken for insufficiency. Its sufficiency as a pleading should be tested by motion to dismiss. The summary disposition of pleadings by motion to strike is the exercise of a necessary but delicate power which should be cautiously applied. A motion to dismiss goes to the bill or counterclaim as an entirety for insufficiency, while a motion to strike is applicable to such pleadings where the whole or any part thereof is wholly irrelevant or for any reason improper. * * *' Kooman's 'Florida Chancery Pleading and Practice,' p. 253.

In equity, maxims governing the action of the chancellor are that 'a court of equity ought to do justice completely, and not by halves' and that 'equity will not enter a partial or incomplete decree.' 'The rule is that equity will not enter a partial or incomplete decree. Having taken cognizance of a cause for any purpose, a court of equity will ordinarily retain jurisdiction for all purposes, decide all issues which are involved by the subject matter of the dispute between the litigants; award relief which is complete and...