Turner v. Utley
| Decision Date | 15 April 1927 |
| Citation | 93 Fla. 910,112 So. 837 |
| Parties | TURNER et al. v. UTLEY et al. |
| Court | Florida Supreme Court |
Suit by the City of St. Petersburg against Daniel T. Utley and others. From an order denying the motion of Daniel T. Utley and wife for a decree pro confesso, and requiring other defendants to reply to the last-named defendant's counterclaim, George T. Turner and others appeal.
Reversed and remanded.
Syllabus by the Court
Matters not connected with subject-matter of original bill, and not arising out of subject-matter of suit, cannot be pleaded as counterclaim (Rev. Gen. St. 1920, § 3120). Extraneous matters constituting a distinct and independent cause of action foreign to and not connected with or germane to the subject-matter of the original bill, and not arising out of the transaction which is the subject-matter of the suit cannot properly be pleaded by answer as a counterclaim, under the provisions of section 3120, Rev. Gen. Stats. 1920.
In suit to foreclose assessment lines, answer may not by counterclaim compel adjudication whether defendant's title or tax title is paramount (Rev. Gen. St. 1920, § 3120). Suit in equity was brought by a municipality as complainant for the purpose of foreclosing a lien for special assessments against real property. There were joined as defendants one who purports to be the owner of the record title to the property and also others who claim title thereto under a tax deed. Complainant alleges, and the answering defendant who purports to own the record title does not deny, that complainant lien is superior to both titles. Held, that the claimant of the record title may not in that suit, by an answer embracing a purported counterclaim, compel an adjudication as between himself and the claimant of the tax title of the question as to which of those titles is paramount, when no affirmative relief is sought against the original complainant and its rights are not affected by the settlement of the controversy between the defendants over the title.
Appeal from Circuit Court, Pinellas County; M. A. McMullen, judge.
Whitaker, Himes & Whitaker, of Tampa, for appellants.
Wm. G. King and J. Frank Houghton, both of St. Petersburg, for appellees.
This appeal involves a question of procedure and turns upon a construction of section 3120, Rev. Gen. Stats. 1920. An understanding of the question at issue requires a statement of the facts and pleadings.
By bill in equity, the city of St. Petersburg, as complainant, sought the foreclosure of certain liens upon several parcels of real property located in that city, which liens, it is alleged, are based upon special assessments for paving and secure divers outstanding and unpaid certificates of indebtedness owned by complainant, and which represent the cost of the paving.
The bill of complaint further alleges that the liens of the special assessments aforesaid are superior to all other liens, except liens for state and county taxes; that one H. C. Hayward claims to have obtained a tax deed to the lands involved, which tax deed in invalid and complainant's lien superior and paramount thereto for divers reasons assigned in the bill of complaint. Hayward and several other persons, who are alleged to claim under him, were made parties defendant. Other parties defendant are Daniel T. Utley and wife, who are alleged to be the owners, respectively, of the record title to the lands and a contingent right of dower therein.
The bill prays for an accounting as to the amounts due complainant under said certificates of indebtedness; that the special assessment liens securing the same be decreed to be superior to the alleged tax title of Hayward and his privies; that the tax deed to Hayward be decreed to be invalid; that complainant's liens for special assessments be foreclosed; and that in default of payment of the amounts secured thereby the lands involved be sold.
Hayward and his privies demurred to the bill. So far as this record discloses, the demurrer has not been disposed of.
Utley and wife answered the bill. Their answer avers that Daniel T. Utley 'is the owner in fee simple' of the lands involved. The answer further sets out the claims of ownership asserted by Hayward and his privies, based upon the tax deed already referred to, and avers such tax title to be void for divers reasons enumerated in the answer, which are substantially the same as those assigned against the validity of the tax deed by the complainant. The answer further avers that since Hayward and his privies own no interest in the lands, they 'are not entitled to participate in any surplus of proceeds of sale arising in this cause upon a sale of said premises,' but that Utley is solely entitled to receive the same. The answer concludes with the following prayer:
A copy of said answer was served upon the attorneys for Hayward and his privies, but apparently no copy was served on the complainant the city of St. Petersburg.
After a lapse of more than 20 days since the filing of the answer of Utley and his wife, no reply thereto having been filed by their codefendants Hayward and his privies, against whom said answer purported to seek certain affirmative relief as indicated by the prayer appended to said answer, Utley and his wife moved for a decree pro confesso against Hayward and his privies 'for failure to reply to the answer of your petitioners (Utley and wife) as by statute in such cases made and provided.'
Hayward and his privies filed written objections to the entry of the decree pro confesso.
The chancellor's ruling was as follows:
'* * * The court being of the opinion that the said answer sets up an alleged counterclaim which the remaining defendants are required to reply to, in default of which a decree pro confesso may be entered, but the court being of the opinion that leave should be allowed to the said defendants to file said reply:
'It is now therefore ordered, adjudged, and decreed that said application for the entry at this time of a decree pro confesso be denied, and that the defendants to this suit other than Daniel T. Utley and wife are hereby required within 20 days from this date to file a reply to the counterclaim set forth in the answer of the defendants Daniel T. Utley and wife. * * *'
This appeal was taken by Hayward and his privies from the order just quoted, Utley and wife being made parties appellee. The complainant, city of St. Petersburg, is not a party to the appeal.
The sole question involved in the appeal is whether or not the chancellor erred in treating the answer of Utley and wife as a counterclaim and in requiring appellants Hayward and privies, under penalty of suffering a decree pro confesso to be entered against them, to reply to said answer as such. The contention of appellant is that the matters set forth in the answer of Utley and wife do not constitute a counterclaim, as contemplated by section 3120, Rev. Gen. Stats. 1920, upon which a decree pro confesso may be entered in default of a reply, in that such matters neither set forth any grounds for relief against the complainant, nor do they in any wise affect its rights in the suit, nor are such matters related to or connected with the subject-matter of the bill of complaint.
Our present statutes relating to answers in chancery (sections 3118-3123, Rev. Gen. Stats. 1920) were adopted from the new federal Equity Rules of 1912 (rules 30 and 31), which in turn are founded upon the English rules on that subject (see Order XIX, rules 2 and 3) adopted pursuant to the English Judicature Act of 1873.
Substantially all authorities hold or concede the proposition that, prima facie, a defendant is entitled to seek by way of counterclaim against the complainant, severally, or against the complainant and codefendant or other person jointly, or, in the alternative, any appropriate relief cognizable in a court of equity which such defendant might have claimed in an action brought by himself against the complainant, or against the complainant and such other persons, respectively, although such defendant cannot join a third person to be a joint countercomplainant with himself in a counterclaim against the original complainant, or against such complainant and a third person. See Johnson v. Johnson (Fla.) 107 So. 342.
Under our present statutes, a counterclaim may seek relief either against the original complainant solely, or against the complainant and other persons, regardless of whether the latter be or be not already parties to the action; but, in either event, in order to constitute a counterclaim, relief must be claimed against the original complainant or the matters set up must affect the original complainant's rights. See Daniell's Chancery Practice (8th English Ed., 1914) p. 44 et seq.
Upon the question of whether or not it is essential that there be some connection between the subject-matter of the...
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