Tuggle v. Maddox
| Decision Date | 25 July 1952 |
| Citation | 60 So.2d 158 |
| Parties | TUGGLE v. MADDOX. |
| Court | Florida Supreme Court |
O. B. White, E. S. Corlett, III, and John R. Tatum, Miami, for appellant.
George C. McCaughan, Miami, for appellee.
Appellant and appellee were married many years ago and to the union a boy, now seventeen, was born. When the marriage had lasted about seven years the appellant obtained a divorce, apparently on the ground of desertion, and was awarded the custody of the child. As time passed the appellee made but one contribution in money to the support of the boy, so the burden fell upon the appellant. In this action she seeks as damages the expense to which she has been put.
Much of the briefs is devoted to the fundamental question whether one may recover in such circumstances, but we do not presently feel obligated to decide it because of the irregular procedure followed in the trial court in arriving at the judgment.
At the time of decision the amendments to Common Law Rules effective June 1, 1952 did not apply. Original rule No. 13, 30 F.S.A. provided that a pleader could assert certain defenses by responsive pleading or by motion to dismiss. One of these was 'failure to state a claim * * * upon which relief [could] be granted'. It also provided that upon motion to strike the court could order 'any redundant, immaterial, impertinent, or scandalous matter' stricken, or that the court could eliminate such matter of its own initiative.
In the present case no motion to dismiss was ever presented. Instead the appellee moved to strike, severally, three of the four paragraphs of the complaint, containing all its allegations save statements relative to the marriage, divorce, and birth. The ground upon which the movant relied was the immateriality and irrelevancy of the contents. As to the first two parts the pleader elaborated by adding the words: 'as it affirmatively appears that the statute of limitations has run on the claim set forth therein.'
When the motion to strike reached the judge he dismissed the cause for three reasons. The first was the pendency of 'an action in equity to require the defendant to support their minor child * * *.' This is the only place in the record where such a suit is mentioned. From this brief description of it by the court it sounds as if the chancery decree sought was the establishment of sums to be paid in the future as contrasted with the relief here of judgment for moneys already spent by appellee without regard to any allowances ever having been fixed by any court. So it is not patent that the chancery decree if...
To continue reading
Request your trial
-
Pride v. Peterson, 53628
...defense and then overcoming it in his initial pleading. Akin v. City of Miami, Fla., 1953, 65 So.2d 54, 37 A.L.R.2d 691 and Tuggle v. Maddox, Fla.1952, 60 So.2d 158. Furthermore the burden is on the defendant to prove his affirmative defenses, which cannot be done in proceedings on a motion......
-
Fletcher v. Williams
...are in effect in this state. Following the adoption in 1949 of the new rules of civil procedure the Supreme Court was called upon in the Tuggle case 11 to review a decision of a trial court dismissing a complaint on the ground that it affirmatively appeared that the statute of limitations h......
-
Glass v. Camara, KK-343
...time the cause of action accrued, is a matter of avoidance which plaintiff must plead by reply to the affirmative defense. Tuggle v. Maddox, 60 So.2d 158 (Fla.1952); Proctor v. Schomberg, 63 So.2d 68 (Fla.1953); Akin v. City of Miami, 65 So.2d 54 (Fla.1953); A & G Aircraft Service, Inc. v. ......
-
Estate of Read, In re
...that failure to plead an affirmative defense of a statute of limitations constitutes a waiver of that defense. See, e.g., Tuggle v. Maddox, 60 So.2d 158 (Fla.1952); Puleston v. Alderman, 148 Fla. 353, 4 So.2d 704 (1941); Danielson v. Line, 134 Fla. 585, 185 So. 332 (1939); Hood v. Hood, 392......