Strong v. Clay

• Decision Date: 07 September 1951
• Citation: 54 So.2d 193
• Parties: STRONG et ux. v. CLAY.
• Court: Florida Supreme Court

Page 193

54 So.2d 193

STRONG et ux. v. CLAY.

Supreme Court of Florida, Division B.

Sept. 7, 1951.

Garland W. Spencer, Sanford, for petitioners.

P. B. Howell and J. C. Getzen, Jr., Bushnell, for respondent.

SEBRING, Chief Justice.

This is a certiorari proceeding in which the petitioners seek to quash an order entered at final hearing on the pleadings. The facts necessary to a decision are simple:

On July 28, 1950 the respondent filed a complaint in the Circuit Court of Sumter County praying for the entry of a temporary injunction against the petitioners without notice. An injunction was entered on the day the complaint was filed, in accordance with the prayer, and has never been vacated or set aside. Subsequently, various and sundry pleadings were filed by the parties, and on February 1, 1951 the cause became at issue. No time was ever fixed by the court thereafter for the taking of testimony, nor was the cause ever set for trial before the court. More than two months elapsed after the cause became at issue, during which time neither party made any move to bring the cause to trial. Thereafter, the petitioners set the cause down for final hearing on the pleadings. The trial court declined to enter a decree for the petitioners on the pleadings because it was of the view that the time for taking testimony in the cause had been automatically extended by virtue of the existence of a general order of circuit-wide application which had been entered by the Circuit Judges of the Fifth Judicial Circuit, on July 22, 1950, as follows: 'It is hereby ordered, that in all chancery cases coming to issue in this Court, that the time for taking testimony in each of such cases be, and the same is, hereby extended until time for taking such testimony is fixed or limited by special order of this Court, in each case, made either by the Court on its own motion, or on motion of one or more of the parties. * * *'

The petitioners seek to quash the order entered in the cause, on the ground that the general order of July 22, 1950 is in direct conflict with Florida Equity Rule 46 and hence is not controlling.

Section 25.47, Florida Statutes 1941, as amended by chapter 21995, Laws of Florida 1943, F.S.A., gives to the Supreme Court of Florida the power to make rules to govern the procedure in all courts of the State. Under this authority the Supreme Court, on November 22, 1949, entered an order adopting the Florida Common Law and Equity Rules, decreeing in said order that '* * * said rules shall become effective on the 1st day of January 1950, and * * * all actions at law and suits in equity or proceedings commenced or instituted thereafter shall be conducted pursuant to said rules.'

Florida Equity Rule 46, 31 F.S.A., adopted by the Supreme Court pursuant to said order, provides: '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 making of testimony in any cause, unless the case has been set for trial before the court. * * *'

Under Equity Rule 46, where a cause has not been set for trial before the court, and the court...