Town of Punta Gorda v. Charlotte Realty & Inv. Co.

• Decision Date: 12 February 1927
• Parties: TOWN OF PUNTA GORDA v. CHARLOTTE REALTY INVESTMENT CO.
• Court: Florida Supreme Court

111 So. 631

93 Fla. 253

TOWN OF PUNTA GORDA v. CHARLOTTE REALTY INVESTMENT CO.

Florida Supreme Court

February 12, 1927

En Banc.

Suit by the Charlotte Realty & Investment Company against the Town of Punta Gorda to quiet title. From an interlocutory decree granting a rehearing on a motion for leave to withdraw a replication to the answer, and permitting filing of plea of res judicata, respondent appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

In absence of error or clear abuse of discretion, order granting rehearing in equity case and allowing plea to be filed will not be reversed; in suit to quiet title, after denying motion to withdraw replication, granting rehearing and permission to file plea of res judicata was not abuse of discretion. Where on the particular facts in the premises, there is nor clear abuse of discretion of error of law in granting a rehearing and allowing a plea to be filed in an equity cause, such order will not be reversed on appeal.

In suit to quiet title, granting application to withdraw replication and to file plea to answer was required on terms in court's discretion (Rev. Gen. St. 1920, § 2629). An application for leave to withdraw replication to an answer in chancery seeking affirmative relief, and to file a plea thereto, it merely a motion to amend the pleading or proceedings in a civil action, and, under section 2629 Revised General Statutes of Florida, the complainant was authorized to apply for permission to file the plea, and the court required to grant it upon such terms as the court, in its discretion, should require.

Courts have broad discretion in allowing amendments to pleadings (Rev. Gen. St. 1920, § 2629). Under section 2629, Revised General Statutes of Florida, the courts have a broad discretion in allowing amendments.

In passing on motion for leave to file plea in chancery chancellor is not required to determine its legal sufficiency (Rev. Gen. St. 1920, § 2629). In considering and passing upon a motion for leave to file a plea in chancery, the chancellor is nor required to determine the legal sufficiency of the plea. In other words, the court is not required to determine what its order would be, if the plea were before him for consideration after being set down for argument.

Proper method to test legal sufficiency of plea in equity is to set it down for argument (Rev. Gen. St. 1920, § 3127). The proper method of testing the legal sufficiency of a plea in equity is to set it down for argument.

Appeal from Circuit Court, Charlotte County; George W. Whitehurst, judge.

COUNSEL

J. H. Hancock, of Punta Gorda, and Hampton, Bull & Pencke, of Tampa, for appellant.

Leitner & Leitner, of Arcadia, for appellee.

OPINION

CAMPBELL Circuit Judge.

The appellee, as complainant in the court below, filed its bill of complaint against the appellant and certain other respondents, seeking to have its title to certain real estate quieted.

The town of Punta Gorda filed an answer, denying the equitites of the bill of complaint, and asking for certain affirmative relief upon certain allegations set forth in the answer. To this answer the complainant filed a replication in the nature of an answer, to the allegations which sought affirmative relief. Subsequently the complainant filed a motion for leave to withdraw its replication to the answer and to file plea of res adjudicata, which it tendered with the motion. This motion came on for hearing in the court below on May 28, 1926, and was denied. A few days after the entry of the order denying complainant's motion for leave to file the plea, a petition for rehearing upon the motion was filed. This petition was heard on June 16, 1926, after notice to the respondent, and the rehearing granted and permission given for the complainant to file its plea of res adjudicata. The court's order is as follows:

'After argument of counsel for the respective parties, and consideration of the plea offered as amended, motion granted and plea allowed to be filed in this cause.'

From this interlocutory order or decree the respondent, the town of Punta Gorda, has appealed, and has assigned two errors upon which it asked to have this court reverse the decree. The two assignments of error are:

First, 'because the court erred in granting a rehearing of the motion to file the so-called plea of res adjudicata;' and, second, 'because the court erred in allowing the complainant to file its so-called plea of res adjudicata.'

We find no error in the order of the court granting the rehearing upon complainant's motion to file its proposed plea.

The petition for rehearing, after directing the court's attention to certain matters which the court apparently failed to consider in passing upon the motion, set forth a further ground in the following language:

'It was understood at the hearing of this application, prior to the 28th day of May, that it would be finally presented and heard on that date, to wit, May 28th, 1926, and that, unless counsel for the complainant were notified to the contrary, this matter would be taken up on brief, and that counsel would not be present; that on that date, to wit, May 28, 1926, counsel for the complainant, who had been managing this case, was not present, and considered that the said matter would come up on brief, and had briefed the matter, and counsel for the complainant is informed that the court had not received the brief at that time, and the entire matter was not presented to the court.'

This petition was sworn to by one of the counsel for the complainant.

There is nothing in the record tending to controvert the matters set up in the abovequoted paragraph of the...