Zewadski v. Dyal
| Decision Date | 11 July 1919 |
| Citation | 82 So. 846,78 Fla. 109 |
| Parties | ZEWADSKI v. DYAL et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Polk County; John S. Edwards, Judge.
Bill by Guy B. Zewadski against J. P. Dyal and others. From a decree dismissing the bill of complaint, complainant appeals. Reversed.
Syllabus by the Court
It is not error to refuse to dismiss a bill of complaint without prejudice and to dismiss it as a finality, where more than three months has passed since the cause was at issue under the statute, and no master has been appointed and no testimony taken.
Defendants have a right to set cause down for final hearing on bill and answer under the statute and court rule, the time for taking testimony having expired. The right having accrued to the defendants, and they having acted upon it, it is such a substantial right that the judge should not lightly deprive them of it in a decree based on bill and answer.
Equity will cancel a release or satisfaction of mortgage given to become operative and to be recorded upon conditions to be fulfilled.
COUNSEL James F. Glen, of Tampa, for appellant.
A. T Stuart, of Tampa, for appellees.
The lower court rendered a decree dismissing complainant's bill of complaint, from which decree the complainant appeals.
In this suit the complainant filed his bill of complaint on the 19th day of October, 1915, in which he alleges that he was on the 14th day of September, and prior thereto, the owner of a certain mortgage therein described; that on or about the 14th day of September, 1915, the complainant and the defendants J. P. Dyal, G. H. Whittemore, and D. W. Ross entered into an agreement under which the defendants were to take up the said mortgage for a consideration of $3,000, and one Regal automobile, and for which the complainant was to give a full satisfaction of the mortgage; and that to facilitate matters a satisfaction was given at once with the understanding and agreement that it should not be recorded until the consideration was paid in full, and that, should the consideration not be paid in full by the 30th day of September, the satisfaction so given would be null and void. The bill also alleges that the satisfaction was, contrary to the agreement, recorded at once; and it also alleges fraud in obtaining and recording the satisfaction. The complainant prays in his bill of complaint for the cancellation of the satisfaction and that the mortgage be declared a valid lien and mortgage upon the property.
The bill of complaint was demurred to and the demurrer was overruled.
On the 10th day of April, 1916, the defendants filed their joint answer to the bill. The answer denies that the complainant has any bona fide claim in and to the said mortgage. The answer alleges that the automobile was actually delivered to W. K. Zewadski, Jr., brother of the complainant and owner of the mortgage, in consideration of the delivery of the satisfaction to the defendants, and that the further sum of $3,000 was to be turned over to W. K. Zewadski, Jr., upon certain conditions, which were never fulfilled; and that all of this was done with the knowledge of the complainant. The answer admits a balance due W. K. Zewadski Jr., for the satisfaction, and offers to pay the balance due.
The answer sets up a different contract from the one alleged in the bill of complaint. It does not deny that the satisfaction was recorded contrary to agreement, nor does it deny that the satisfaction was to be null and void if the whole consideration were not paid by September 30th. It does not specifically deny the fraud alleged, but attempts to explain away the fraud.
By chapter 6907, Acts of 1915, all material allegations of the bill not denied are admitted, and all new matters set up by the answer are deemed denied by the complainant and must be proved by the defendant.
Exceptions to the answer were filed, and all except one overruled on the 9th day of June, 1916. The one sustained was unimportant and did not affect the status of the suit. Replication was filed on the 5th day of August, 1916. No affirmative relief was sought by the answer, and no set-off nor counterclaim was interposed. The cause was then at issue and ready for the taking of testimony under the statute, certainly on the 9th day of June, 1916. The defendants set the cause down for final hearing on bill and answer the 13th day of September, 1916, which was more than three months after it was at issue; and no master had been appointed and no testimony taken. On the 16th day of October, 1916, a special master was appointed upon motion of the complainant. Argument was heard and the bill was dismissed by a decree rendered on the 12th day of October, 1917.
The record does not show that any motion for further time to take testimony was ever filed. The final decree dismissing the bill recites that a request...
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Meyer v. Solomon
...allegations of the complaint which show the pleader is entitled to relief, and a decree against the defendant is proper. In Zewadski v. Dyal, 78 Fla. 109, 82 So. 846, the lower court entered an order of dismissal with prejudice under the foregoing circumstances and the order was reversed wi......
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City of Miami v. Miami Transit Co.
...down for final hearing on the pleadings and thus bring the cause to conclusion. Myers v. Julian, 57 Fla. 493, 48 So. 998; Zewadski v. Dyal, 78 Fla. 109, 82 So. 846; Chatham Investment Co. v. Sunshine Investments, Inc., 98 Fla. 783, 124 So. 374. At such a hearing all the proper allegations o......
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Chatham Inv. Co. v. Sunshine Inv.
...had expired for taking testimony, the defendants answering set the cause down for final hearing on bill and answer. In Zewadski v. Dyal et al., 78 Fla. 109, 82 So. 846, court say: 'Defendants have a right to set cause down for final hearing on bill and answer under the statute and court rul......
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Strong v. Clay
...down for final hearing on the pleadings and thus bring the cause to conclusion. Myers v. Julian, 57 Fla. 493, 48 So. 998; Zewadski v. Dyal, 78 Fla. 109, 82 So. 846; Chatham Investment Co. v. Sunshine Investments, Inc., 98 Fla. 783, 124 So. 374. At such a hearing all the proper allegations o......