§ 63.22 F.LORIDA CHANCERY PROCEDURE LAW § 63.23

ANNOTATION. Under the 1931 Chancery Act technical forms

were abolished; substance alone was of the· es­sence, and more lenient informality seemed to be urged in · pleading. Adams v. Fielding, 148 Fla. 552, 557, 4 So. (2d) 678. See Jindra v. Wiers, 114 Fla. 107·; 108, 153 So. 510.

Cited in Gamble v. Gamble Holding Corp., 120 Fla. 340, 353, 162 So. 886.

§ 63.22 HISTORY.

§ 22, ch. -14658, 1931; CGL 4902(31.

ANNOTATION: Cross reference.-See § 63.23 and ·annotation

thereto. Where . instrument or writing relied upon. - ·

F6rmerly a chancery pleading was required to state the substance of an instrument o r writing re­lied upon in addition to having attached thereto as an exhibit such instr).lment or writing or a copy tliereof. Hemphill v. Nelson, 95 Fla. 498, 116. ?o. 498. See Edason v. Central Farmers' Trust Co., 100 Fla. 348, i29 So·. 698; Citizens' State Bank ,;_ Jones, 100 Fla. 1492, 131 So. 369. . ..

The holding in the above cases has been modi­fied because of the application of this section. Home Bldg., etc.,' Co. v. Rivers, 108 Fla. 23, 32, 145 So.' 873 , holding that "where in a bill to fore­close a mortgage a copy of the mortgage is at­tached to and made a part of the bill of complaint, it is not necessary to copy in the bill of complaint the covenants and conditions contain~d in 'the mortgage. It is only necessary to allege a breach of the covenants or conditions and to allege the facts constituting such breach. The copy of the mortgage made a part of the bill of complaint

ability under the mortgage for such fees, for which he may have a decree against the defend­ant in the particular case. Brett v. First Nat. Bank, 97 Fla. 284, 120 So. 554; Rosemary Corp. v. Parker, 97 Fla. 691, 121 So. 903." Rhea v. De­Vault, 108 Fla. 591, 592, 146 So. · 643.

Where pleading contains matters that should be eliminated.-"Where a bill in equity contains eq­uity, but embraces allegations of matters and spe­cial prayers for relief that should be eliminated, one who is prejudiced thereby may move to strike out that part of the bill which is not good or that claim or prayer of which an equity court has rio right to take cognizance." Winter Haven v. Sum" merlin, 114 Fla. 727, '(31, 154 So. 863. ·

Motion to strike is properly sustained where ex­hibit of fifty-eight pages violates this section. Scott v. Venice, 123 Fla. 772, 773, 167 So. 654.

Sustaining motion to strike matter from answer held proper. Ray Realty Corp. v. Kettman, 131 Fla. 32, 34, 178 So. 563.

Motion to strike is prQperly denied where para­graphs of answer objected to are in some degree responsive to allegations of bill. Therrell v. Gil­christ, 111 Fla. 409, 411, 149 So. 574.

Motion to strike affirmative portions of ans"wer held properly denied. Miakka Estates v. B. L. E. Realty Corp., 132 Fla. 307, 314, 181 So. 423.

Where sub-paragraph of bill was a quotation of a part of the mortgage sought to be foreclosed motion to strike the same would not lie. T-R In­dian River Qrange Co. v.. Keene, .124 Fla. 343, 168 So. 408.

Applied, as to bill for divorce, in Gratz v. Gratz, 127 Fla. 605, 173 So. 442; Roebling v. Roebling, 119 Fla. 768, 161 So. 715.

§ 63.23 may be looked to to ascertain the provisions of HISTORY. such covenants and conditions alleged to have been breached." § 23, ch. 14658, 1931; CGL 4902(4).

"While it would be better pleading to distinctly ANNOTATION. allege that the parties entered into the covenants, Cross reference.-See § 63.22 and annotation etc., as stated in the mortgage, yet it is alleged thereto. that the defendants, 'made, executed and delivered Chancellor on own motion may purge pleadings to your orator a certain mortgage and granting to of prolixity, tautology, scandal and impertinence. your orator a mortgage lien on' described land, Proctor v. Hearne, 100 Fla. 1180, 1190, 131 · So. and that 'a copy of s;tid mortgage deed is attached 173. and made a part of this bill as if copied at length Motion to strike part of answer deemed re­herein,' and th.e bill ,of complaint does not wholly dundant, impertinent or scandalous is controlled fail to state a cause of action as to be subject to a by rule which requires denial of motion unl~s motion to dismiss." Home Bldg., etc., Co. v. Riv- such matter is wholly irrelevant, can have no ers, 108 Fla. 23, 31, H5 So. 873. bearing upon the equities and no influence upon

Particular breaches of any special coverlants the decision either as to relief to be granted or at­and conditions contained in · mortgage must be lowance of costs. Gossett v. Ullendorff, 114 Fla. specified in bill to foreclose, if such breaches are 159, 164, 154 So. 177. to be relied on for special relief, such as the If an answer goes out of its way to .state scan­recovery of' an attorney's fee by way of indemnity dalous matter it will be expunged on proper ap­from defendant to complainant, for the latter's so- plication. Hunt v. Turner, 54 Fla. 654, 45 So. 509. licitor's services in conducting the foreclosure suit. Order striking parts of answer in foreclosure Rhea v. DeVault, 108 Fla. 591, 593, 146 So. 64::!, action held proper. Mason v. Florida Bank, 122 citing Vieno v. Fields, 101 Fla. 191, 133 So. 891. Fla. 391, 165 So. 269.

Where notes and mortgage sued on were made An answer is not impertinent which can influ-a part of the foreclosure bill, that "was sufficient ence the decision of the suit. Holzendorf v. Ter­as an allegation that the notes and mortgage con- rell, 52 Fla. 525, 42 So. 584; Trustees, etc., v. Root, tained a provision under which attorney's fees' 63 Fla. 666, 58 So. 371; Jones v. Hiller, 65 Fla. could· have been recovered. But in order to have 532, 62 So. 583. an amount adjudged due for attorney's fees and Where a bill alleges unnecessary facts tending included in the final decree, it must also be alleged to reflect upon defendant's integrity, an answer and proved that in accordance with the notes or responsive to such allegations is not impertinent. mortgage sued on, complainant has incurred a li- Holzendorf v: Terrell, 52 Fla. 525, 42 So. 584.

[ 251]

§ 63.24 F.LORIDA CHANCERY PROCEDURE LAW § 63.28

If the part of an ans~~· er excepted to is relevant. or can have any influence in the decision of the suit either as to the subject matter of the contro­versy, the particular relief to be given, or as to the costs, it will not ·be held impertinent. Robertson v. Dunne, 45 Fla. 553, 33 So. 530.

As to former law allowing exceptions for im­pertinence, see Bush v. Adams1 22 Fla. 177; Law v. Taylor, 63 Fla. 487, 58 So. 844; Holzendorf v. Terrell , 52 Fla. 525, 42 So. 584; Hunt v. Turner, 54 Fla. 654, 45 So. 509; South Florida Citrus Lanrl Co. v. Walden, 59 Fla. 606, 51 So. 554; Bettis v. Tampa Real Estate Exch., etc., Ass'n, 62 F la. 435, 56 So. 499; Wofford v. Dykes, 67 Fla. 118, 64 So. 451.

§ 63.24 HISTORY.

§ 24, ch. 14658, 1931; CGL 4902(5).

ANNOTATION.

Realty Co., 109 Fla. 1, 148 So. 560)." Holton & Co. v. Hull, 140 Fla. 687, 690, 192 So. 229, quoting Barry v. Willard, 117 Fla. 236, 238, 157 So. 669.

The matter of allowing amendments to plead­ings is liberal under the Florida practice. Wat­kins v. Watkins, 123 Fla. 267, 275, 166 So. 5i7; Waits v. Orange Creek Turpentine Corp., 123 Fla. 31, 166 So. 449.

The purpose of the liberal provision for amend­ing pleadings in this section was to arrive at the substantive rights of the parties. Williams v. Robineau, 124 Fla. 422, 428, 168 So. 644.

But rests largely in the discretion of the court which is subject to review for abuse. Waits v. Orange Creek Turpentine Corp., 123 Fla. 31, 166 So. 449.

Cited in Mikesell v. Mikesell, 137 Fla. 188 So. 100 (dis. op.).

"In disposing of applications to amend the court exercises his judicial discretion in the light of the circumstances of the particular case and the state of the pleadings at the time the amendment is

108• 113• sought." ld.

§ 63.25 HISTORY.

§ 25, ch. 14658, 1931; CGL 4902(6).

ANNOTATION. This section is analogous to former Federal eq­

uity rule 20, and bears the same construction that has been placed on the rule. Paynt> v. Kello, 106 Fla. 831, 833, 143 So. 790.

Motions for better particulars are addres;sed to the sound judicial discretion of the chancellor, whose action thereon will not be reversed unless shown to be an abuse of discretion which has re­sulted in prejudice. Payne v. Kello, 106 Fla. 831, 834, 143 So. 790, wherein denial of motion as to matter of accounting was held not harmful error.

Illustrative cases.-As to propriety of requiring of defendant a better statement of particulars and facts constituting alleged agreement to subordi­nate first lien, see Therrell v. Gilchrist, 111 Fla. 409, 411, 149 So. 574, citing Florida East Coast R. Co. v. Eno, 99 Fla. 887, 128 So. 622, 70 A. L. R. 506.

Bill for divorce charging extreme cruelty held suffi.cient as against motion to require amendment so as to state plaintiff's case with greater particu­larity. Roebling v. Roebling, 119 Fla. 768, 161 So. 715.

Application to amend a bill should be made promptly after the necessity for the amendment has been discovered. Griffin v. Societe, etc., 53 Fla. 801, 44 So. 342.

"In a proper case a complainant may be permit­ted to amend the bill on final hearing, so as to meet the proofs as made, if they entitled him to relief. But . this is not an indiscriminate rule." Watkins v. Watkins, 123 Fla. 267, 273, 166 So. 577. See Wordinger v. Wirt, 112 Fla. 822, 151 So. 47.

Where upon the final hearing, it clearly appears from the evidence that the complainant has a case, but which by reason of some omission in the a11c­gation is· not fairly brought within the issues, he will genera1ly be permitted to amend the bi11 and adapt its allegations to the case as proven. Grif­fin v. Societe, etc., 53 Fla. 801 , 44 So. 342.

And pleadings may be amended after remand.-­"The lower court does have the authority and should in its sound discretion permit either party to amend their pleadings after the case has been remanded by the supreme court so long as such amendments do not set up a new cause of action, and are not inconsistent with the disposition of the cause in the supreme court and the holding set f<;~rth in its opinion. Hart v. Smith, 20 Fla. 58. See in this connection Phifer v. Abbott, 73 Fla. 402, 74 So. 488; Peacock v. Our Home Life Ins.

§ 63.26 Co., 73 Fla. 1207, 75 So. 799." Federal Land HISTORY. Bank v. Brooks, 139 Fla. 506, 514, 190 So. 737.

§ 26, ch. 14658, 1931 ; CGL 4902(7). An amendment stating a new and different ANNOTATION. cause of action is not authorized under this sec-

Cross reference.- See annotations to §§ 63.2\l, tion. Gables Racing Ass'n v. Persky, 131 Fla. 63.34. 842, 845, 180 So. 24; State v. Hewitt, 116 Fla. 140,

This section was derived from § 26 of the Flor- 156 So. 236; Federal Land Bank v. Brooks, 139 ida Chancery Act which was taken from rule 19 Fla. 506, 514, 190 So. 737. And a tendered amen,l­of the former Federal equity rules. Watkins v. ment which presents a cause of action wholly in­Watkins, 123 Fla. 267, 273, 166 So. 577, citing Me- consistent with that attempted to be set up in the Carthy's Florida Chancery Act, Ann. 2nd Ed. original bill is not permissible. Barry v. Willard, p. 68. 117 Fla. 236, 238, 157 So. 669, citing Palm Beach

Relating to amendments generally. - "The Estates v. Croker, 106 Fla. 617, 143 So. 792; Gug­Chancery Practice Act, Chapter 14658, Acts 1931, genheimer & Co. v. Davidson, 62 Fla. 490, 56 So. Laws of Florida, § 26, deals with the subject of 801. amendments generally and provides that matter This section does not overthrow the long estab­supplemental may be brought in by an amended lished chancery rule that an amended bill of com­pleading which becomes in contemplation of the plaint, which is in effect the institution of a new Practice Act, a supplemental bill denominated an and materially different suit palpably inconsistent amendment (Biscayne Realty, etc., Co. v. Ostend with or repugnant to the original pleading, is rtot

[ 252]

§ 63.27 F.LORIDA CHANCERY PROCEDURE LAW § 63.27

permissible under the guise of an amendment. Barry v. Willard, 117 Fla. 236, 238, 157 So. 669. And in such case a motion to strike would not be an inappropriate remedy. Guggenheimer & Co. v. Davidson, 62 Fla. 490, 492, 56 So. 801; Holton & Co. v. Hull, 140 Fla. 687, 690, 192 So. 229.

"When the proposed amendment would change the issue, or introduce new issues, or materially vary the grounds of relief, generally an amend­ment of the bill is not permissible." Wordinger v. Wirt, 112 Fla. 822, 823, 151 So. 47, quoting Griffin v. Societe, etc., 53 Fla. 801, 44 So. 342.

New and different cause of actiort held not stated in amended bill of complaint. Holton & Co. v. Hull, 140 Fla. 687, 690, 192 So. 229.

An amendment narrowing the prayer for relief does not make an entirely new case. Fisher v. Villamil, 65 F la. 488, 62 So. 481.

Where a sworn answer has been filed in re­sponse to a demand made therefor in the original bill such bill cannot subsequently be amended, at least as to the same matter set up in the original bill, so as to waive a sworn answer. Springfield Co. ~· Ely, 44 Fla. 319, 32 So . . 892.

Amendments held proper.- Bill to forecl ose mortgage for default in payment of one of the two notes secured held properly amended by set­ting up the second note which subsequently be­came due under the terms of the acceleration clause. Hotel Management Co. v. Krick!, 117 Fla. 626, 158 So. 118.

The real party complainant being alleged to be mentally weak, the court on its own motion sug­gests a recasting of the bill of complaint, lest de­fects now easily amended might prove hurtful after an expensive litigation. Dekle v. Barkley, 48 Fla. 250, 37 So. 581.

As a general principle it may be asserted that a party seeking specific performance must recover on the case as made in the bill, but such latitude has been allowed in the matter of amendments, as to authorize a plaintiff to amend his bill, and take decree · according to the case made by the answer. Lewis v. Yale, 4 Fla. 418.

Amendments properly refused.- Where bill of complaint, standing upon its own allegations, con­tained no equity and a proposed amended bill con­tained nothing of substance which ' might have cured the defects of the original bill, the discre­tion of the chancellor in not allowing proposed amended bill to be filed was not abused. Harrell v. Martin, 119 Fla. 275, 279, 161 So. 389, citing Griffin v. Societe, etc., 53 Fla. 801, 44 So. 342; Painter Fertilizer Co. v. Fo'ss, 107 Fla. 464, 145 So. 253; Hart v. Pierce, 98 Fla. 1087, 125 So. 243; Carroll v. Gore, 106 Fla. 582, 143 So. 633, 89 A. L . R. 1495.

Chancellor held not to have abused his discre­tion in refusing to let supplemental answer b~ filed. Waits v. Orange Creek Turpentine Corp., 123 Fla. 31, 39, 166 So. 449.

section. Pafatka Bldg., etc., Ass'n v. Levey, 109 Fla. 293, 295, 147 So. 212.

Error in permitting amendment cured by dis­missaL-Any error in the chancellor's permitting amendment of bill to foreclose mortgage before the filing of the appearance of the defendants and without notice to them was cured by the chancel­lor's order subsequently sustaining the defend­ants' motion to dismiss the amended bill. Hotel Management Co. v. Krick!, 117 Fla. '626. 630, 158 So. 118.

Applied in Smithson v. Deely, 131 Fla. 776, 179 So. 759; as to cross bill, in Williams v. Robineau, 124 Fla. 422, 168 So. 644; as to bill for strict fore­closure of contract for sale of land, in Wordinger v. Wirt, 112 Fla. 822, 823, 151 So. 47.

§ 63.27 HISTORY.

§ 27, ch. 14658, 1931; CGL 4902(8). ANNOTATION.

"The function of a supplemental bill is to sup­ply some imperfection or mistake in the original bill, or to bring before the court facts which had occurred or at least been discovered since the fil­ing of the original bill and affecting the rights of the parties or the subject of the controversy. It may be resorted to where an amendment is not available. It must appear that the facts relied up­on as supplemental have arisen since the com­mencement of the original suit or that the facts have first come to the complainant's knowledge or been made known to him in such manner or at such time that an amendment would not be avail­able. Such a bill is applicable to cases where the same parties or the same interests remain before the court. It is merely ancillary to the original pleading. The facts set up must be material and germane to the cause set out in the original." Biscayne Realty, etc., Co. v. Ostend Realty Co., 109 Fla. 1, 14, 148 So. 560, citing Owens v . Love, 9 Fla. 325; Ledwith v. Jacksonville, 32 Fla. 1, 13 So. 454; State v. Black River Phosphate Co .. 32 Fla. 82, 128, 13 So. 640, 21 L. R. A. 189.

A supplemental bill is considered merely as an addition to an original bill, and while it is often proper to introduce matter that has occurred after the institution of a suit, and of such a nature as cannot be properly the subject of an amend­ment, yet such new matter must not be such as to change: the rights and interests of the party. Led­with v. Jacksonville, 32 Fla. 1, 13 So. 454.

As to waiver of objection that supplemental bill sets up subsequent facts which make a new case, see Crump v. Perkins, 18 Fla. 353.

A supplemental bill which presents a continu­ation of the same trespassing, does not introduce a new subject matter of litigation. State v Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 21 L. R. A. 189.

When supplemental bill not pro:per.- A com­plainant who had no cause of action at the filing

Surplusage.- Where the facts are set forth in of his original bill cannot maintain a supplemental the original bill, an amendment simply stating a bill on a cause that accrued thereafter. Neubert conclusion of law may and should be treated as v. Massman Bros. & Co., 37 Fla. 91, 19 So. 625. surplusage. Gale v. Harby, 20 Fla. 171. Where the original bill for an mjunction

The perfection by amendment of a statutory showed that the act sought to be enjoined had at­chancery order for constructive service that ·is in- ready been accomplished, it was not error to re­valid because of an indefinite and ambiguous re- fuse leave to file a supplemental bill. Smith v. turn date stated therein is not authorized by this Davis, 22 Fla. 405.

[ 253 1

§ 63.28 F.LORIDA CHANCERY PROCEDURE LAW § 63.28

As to effect of consent to filing of supplemental bill, see Hyer v. Caro, 17 Fla. 332.

Cited in Hotel Management Co. v. Krick!, 117 Fla. 626, 630, 158 So. 118; Grant v. Amiker, 120 Fla. 356, 362, 162 So. 712; Palm Beach Estates v. Croker, 111 Fla. 671, 697, 152 So. 416 (con. op.) .

§ 63.28 HISTORY.

509, 163 So. 310; Hewitt v. Punta Gorda State Bank, 1{)8 Fla. 39, 1.45 So. 883; Lamar v. Ray, 132 Fla. 704, 714, 182 So. 292; Schonfeld v. Smith, 125 Fla. 462, 463, 170 So. 129, citing Phifer v. Abbott, 73 Fla. 402, 74 So. 488; Florida Southern R. Co. v. Hill, 40 Fla. 1, 23 So. 566, 74 Am. St. Rep. 124; Orlando v. Equitable Bldg., etc., Ass'n, 45 Fla. 507, 33 So. 986; Brokaw v. McDougall, 20 Fla. 212; Isle worth Grove Co. v. Orange County, 79 Fla. 208, 84 So. 83; Raulerson v. Peeples, 79 Fla.

§ 28, ch. 14658, 1931 ; CGL 4902 (9). 367, 84 So. 370; South Florida Citrus Land Co. v. ANNOTATION. Walden, 59 Fla. 606, 51 So. 554; White Engineer-

I. Generally. ing Corp. v. People's State Bank, 81 FilL 35, 87 II. Illustrative Cases. So. 753.

III. Prayers for Relief. Although the complainant may not have been entitled under the allegations of the bill to the

I. GENERALLY. relief specifically prayed, order denying motion to A bill must allege clearly and definitely every dismiss bill of complaint will be affirmed where

fact necessary to obtain the relief sought. Sawyer the allegations of the bill are amply sufficient to v . . Mount Dora, 108 Fla. 456, 461, 146 So. 563, 148 warrant equitable relief. Schonfeld v. Smith, 125 So. 209; Roney v. Miami Beach, 148 Fla. 52, 56, Fla. 462, 463, 170 So. 129. 3 So. (2d) 701, citing Barton v. Moline Properties, Statutory provisions requiring bills to be veri-121 Fla. 683, 164 So. 551, 103 A. L. R. 725; Dod- fied are not affected by this section. National son v. Florida Nursery, etc., Co., 138 Fla. 887, 889, Container Corp. v. State, 138 Fla. 32, 56, 189 So. 4, 190 So. 695, citing Catts v. Tampa, etc., R. Co., 122 A. L. R. 1000. 75 Fla. 744, 79 So. 168; Willmer v. Newsom, llO Allegations stated on information and belief Fla. 272, 149 So. 3; Hume v. Miller Bond, etc., were held sufficient in suit to enjoin public nui­Co., 96 Fla. 337, 118 So. 3; Treb Trading Co. v. sance where the bill sought no interlocutory relief. Green, 102 Fla. 238, 135 So. 510, 136 So. 688 i National Container Corp. v. State, 138 Fla. 32, 56, Jaudon v. Equitable Life Assur. Soc., 102 Fla. 782, 189 So. 4, 122 A. L. R. 1000. 136 So. 517; Flewwellin v. Jeter, 138 Fla. 540, 544• Applied, as to bill with double aspect, in Bar­.189 So. 651, citing Marshall v. Cliett, 97 Fla. 11• nett v. Dollison, 125 Fla. 254, 169 So. 665; as to 119 So. 518; Creveling v. Chambers, 73 Fla. 512• necessity of pleading resolutions of town council, 74 So. 511; McClinton v. Chapin, 54 Fla. 510• 45 in Lots No. 1685 v. De Funiak Springs, 127 Fla. So. 35, 14 Ann. Cas. 365; Martin v. Dade Muck 348, 174 So. 29. Land Co., 95 Fla. 530, 116 So. 449. Cited in Smith v. Dupuis, 117 Fla. 222, 231, 157

And if complainant omits from his bill essen- So. 491; Gamble v. Gamble Holding Corp., 120 tial facts or states such facts therein as show that Fla. 340, 353, 162 So. 886, he is not entitled to relief in a court of equity, he must suffer the consequences for his so doing. II. ILLUSTRATIVE CASES. Sawyer v. Mount Dora, 108 Fla. 456, 461, 146 So. Allegations held sufficient as against motion to 563, 148 So. 209, citing Norton v. Jones, , 83 Fla. dismiss. Crouch v. Poole, 133 Fla. 489, 182 So. 81, 90 So. 854 . . See Roney v. Miami Beach, 148 844; Roney v. Miami Beach, 148 Fla. 52, 57, 3 So. 52, 56, 3 So. (2d) 701. (2d) 701.

Ultimate facts relied on for relief held properly Allegations held sufficient to authorize appoint-stated in bill alleging fraud (Hannum v. Hannum ment of guardian. Flewwellin v. Jeter, 138 Fla. Co., 135 Fla. 1, 2, 184 So. 765), and in bill filed by 540, 189 So. 651. holder of tax sale certificate. Capital Finance Allegations of bill to enjoin alleged public nui-Corp. v. Giles, 111 Fla. 527, 149 So. 585. sance held sufficient to require answer. National

But it is not necessary to plead the evidence of Container Corp. v. State, 138 Fla. 32, 189 So. 4, facts. Flewwellin v. J ete·r, 138 Fla. 540, 544, 189 122 A. L. R. 1000. So. 651. · As to residence.-Allegations as to residence

In suing to enforce a special assessment lien held not contradictory and insufficient. Minick v. ~nly ultimate facts showing authority to assess, Minick, 111 Fla. 469, 471, 149 So. 483, citing far­and the making and entry of an actual assessment mer equity rule 17. under such authority, are essential to establish a Bill of complaint was brought by plaintiff as "a prima ~acie case calling for an answer. showing corporation organized and existing under the laws wherein the lien is irregular, unenforceable or of the state of Delaware and duly authorized to otherwise invalid as the basis for the pending transact business in the state of Florida." Su.ch foreclosure proceedings. Sawyer v. Mount Dora, statement was a sufficient' compliance with thic; 108 Fla. 456, 461, 146 So. 563, 148 So. 209, citing section as to the place of residence of the com­Trust Co. v. Tampa, 103 Fla. 628, 138 So. 73; plainant. If for any good cause shown by defend­Parker v. Jacksonville, 37 Fla. 342, 20 So. 538; ant as ground therefor a more definite and partie­Miami v. Miami Realty, etc., Co., 57 Fla. 366, 49 ular statement of complainant's place of residence So. 55. See Davant v. Brooksville, 107 Fla. 292, was essential to defendant's interest, it was with-144 So. 666. in the power of the chancellor to have ordered it

A bill should not be dismissed if it states a case on appropriate motion. Clifford v. Eastern Mtg., entitling plaintiff to any relief under any special etc., Co., 123 Fla. 180, 181, 166 So. 562. prayer, or under the implied prayer for general Allegations held insufficient to state a cause ot relief. Henderson v. Leatherman, 120 Fla. 496, action in suit to enjoin alleged public nuisance:

[ 254]

§ 63.29 F.LORIDA CHANCERY PROCEDURE LAW § 63.3(]

National Container Corp. v. State, 138 Fla. 32, 18\J

So. 4, 122 A. L. R. 1000.

III. PRAYERS FOR RELIEF. A prayer for general relief is no longer neces­

sary. Coffrin v. Sayles, 128 Fla. 622, 628, 175 So. 236.

Any relief which could have been obtained un­der a prayer for general relief prior to the provi­sions of this section becoming effective could thereafter b.e had on a bill without a prayer for general relief. Cole v. Heidt, 117 Fla. 756, 758, 158 So. 435.

A bill praying that administrator be required to account for assets in his hands, and that the court decree payment by defendants to plaintiffs and such other persons of like interest as may join in the suit, was deemed to have prayed for general relief. Sessions v. Willard, 126 Fla. 848, 854, 172 So. 242.

But prayers · for both S!pecial and general relief may be used.-A bill of complaint prayed that building restrictions be enforced and that a filling station be decreed to be a nuisance and abated. It did not pray for compensation but contained a prayer for general and special relief. This was sufficient to award damages that were shown to be incidental to the equitable relief prayed for. Mercer v. Keynton, 121 Fla. 87, 93, 163 So. 411.

In a suit brought by a taxpayer individually and on behalf of city to vacate the assignment of cer­tain municipal tax certificates, it was contended that there was no prayer in the bill seeking relief for benefit of city but that relief sought was for benefit of individual as owner of property covered by tax certificates. It was held that the bill con­tained a prayer for general relief and, therefore, under this section was sufficient. Lamar v. Ray, 132 Fla. 704, 712, 182 So. 292.

No objection to prayers or lack of prayers in a bill can be raised by motion to dismiss. Hewitt v. Punta Gorda State Bank, 108 Fla. 39, 145 So. 883; Lamar v. Ray, 132 Fla. 704, 714; 182 So. 292;

· Schonfeld v. Smith, 125 Fla. 462, 170 So. 129. The better practice is to' incorporate in the bill a

special prayer for a deficiency decree, if one is de· sired. Garner v. Slack, 112 Fla. 553, 150 So. 750.

But this is not necessary.- The chancellor has authority to enter a deficiency decree in a fore .. closure suit although no express prayer was made for it in the bill. Degge v. First . State Bank, 145 Fla. 438, 442, 199 So. 564.

If jurisdiction to enter decree is otherwise in­voked.- If no prayer for a deficiency decree ap­pears in the bill and decree pro confesso is en­tered on the bill, and thereafter the complainant wishes to have the chancellor exercise the juris­diction of granting or denying a deficiency decree, he must do so on motion with timely notice there­of served on the defendant. Cole v. Heidt, 117 Fla. 75q, 759, 158 So. 435.

"It has been held that if by subsequent appro-

Fla. 635, 136 So. 444." Garner v. Slack, 112 Fla. 553, 554, 150 So. 750.

This section does not ' require mortgagees seek­ing to foreclose their mortgages to submit to the court the matter of the entry or refusal of a de­ficiency decree, whether they want to invoke that special power of the court or not. That construc­tion would mean that whenever a mortgagee fore­closes a mortgage, although he asks for no de­filiency decree, he will be deemed to have asked f<!r it, with the result that he absolutely loses his right to sue at law for any balance that may be due on the 1;10tes after applying the proceeds of the foreclosure. Coffrin v. Sayles, 128 Fla. 622, 629. 175 So. 236.

§ 63.29 HISTORY.

§ 29, ch. 14658, 1931; CGL 4902(10).

ANNOTATION. Cross reference.-See annotation under § 63.26. WhE;re no answer was filed in a case there was

no violation of this section by amending the bill without first obtaining the defendant's consent or leave of court to do sa. Crum v. Baily; 135 Fla. 192, 197, 184 So. 774.

In a suit by married women who did not sue by next friends, but merely joined their husbands re­spectively as complainants, the complainants sought to obtain leave from the court before an­swer filed to amend the bill so that the bill would declare the suit to be brought by next friends of the married women as well as in their names joined by their respective husbands. Under this section the complainants had the right to so amend their bill at that stage of the proceedings. Miller v. Ellenwood, 121 Fla. 551, 556, 164 So. 140.

Where an answer has been filed to the original bill, complainant has no right as of course to · file an amended bill or to amend the original bill. Anrl the amendment is not permissible where the cause has been at issue more than a month before ap­plication is made to allow the amendment. Ha!·­rell v. Martin, 119 Fla. 275, 280, 161 So. 389.

Further amendment was not of course ·where complainan~ after filing · an original bill, an amended b1ll, an amendment to an amended bill and a second amended bill, failed to state a cause. Barco v. Doyle, 50 Fla. 488, 39 So. 103.

Under former rule where no replication had been filed to the answer, the complainant had the right, upon motion without notice, to obtain an order for leave to amend his bill. Long v. Ander­son, 48 Fla. 279, 37 So. 216.

Applied in State v. St. ·Petersburg, ~45 Fla. 206, 198 So. 837; Grant v. Amiker, 120 Fla. 356, 362, 162 So. 712.

Cited in Hotel Management Co. v. Krick!, 117 Fla. 626, 630, 158 So. 118; Wise v. Wise, 134 Fla. 553! 559, 184 So. 91.

priate motion, or other pleading, a deficiency HISTORY. judgment is asked for and granted, after an op- §

§ 63.30

portunity to contest the right of complainant to a 30

• ch. 14658

• 1931

; CGL 4902(11). deficiency decree has been afforded to the defend- ANNOTATION. ant, a deficiency decree rendered on a bill of com- Applied in Holloway v. Sewell, 140 Fla. 464, 191 plaint containing a prayer for general relief in ad- So. 825. clition to the prayer for foreclosure, will not be re- Cited in Hotel Management Co. v. Krick!, 117 versed as erroneous. See Garner v. Slack, 102 Fla. 626, 630, 158 So. 118.

[ 255]

§ 63.31 F.LORIDA CHANCERY PROCEDURE LAW § 63.33

HISTORY. § 63.31

§ 31, ch. 14658, 1931; CGL 4902(12).

ANNOTATION. Where there is only one plaintiff and one de­

fendant in a chancery suit, under this section, plaintiff may join as many causes of action cog­nizable in equity as he has against defendant. Davant v. Brooksville, 107 Fla. 292, 293, 144 So. 666.

Where there are two or more plaintiffs they can­not join in a single equitable suit uriless they al­lege a joint cause of action. Krusen Land, etc.; Co. v . Tampa Suburban Corp., 118 Fla. 173, 158 .So. 712 .

I Where a lumber company receives, in violation of the rights of ownership of third parties, certain timbers which it saws up into lumber and so com­mingles it with its own lumber that the rights of ownership of the third parties cannot be identified in the general mass, such third parties may main­tain a single stiit in equity to have such lumber charged with equitable liens and sold for their benefit. Id.

Where there are two defendants, against ·each of whom the bill seeks to make out a separate and distinct cause of action in which the other has no interest, this section does not apply so as to save a bill. Willis v. Hillsborough County, 117 Fl01. 1,. 8, 157 So. 29.

Legal demand against insurer may be enforced with equitable action against vendor or successor for reformation or specific performance of con­tract for the sale of real estate insured. Hartford Fire Ins. Co. v. Brown, 119 Fla. 610, 617, 160 So. 657.

Bill seeking to foreclose separate paving liens on separate parcels of property was held not multi­farious. Davant v . Brooksville, 107 Fla. 292, 293, 144 So. 666.

Quieting title and foreclosure.- One may in a bill of complaint combine two causes of action, one to remove a cloud on title and the other tv foreclose a mortgage, the defendants and the property being identical in each cause of action. Fay v. Lougee, 113 Fla. 784, 785, 153 So. 91.

multifarious where widow was beneficiary in one policy and the child was beneficiary in the other. Franklin Life Ins. Co. v . Tharpe, 118 Fla. 832, 833, 160 So. 199.

Bill of complaint held multifarious under former law. Yates v. Peninsular Securities Corp., 107 Fla. 802, 806, 144 So. 664, 145 So. 69.

Applied in Miles v. Miles, 117 Fla. 884, 888, 158 So. 520; as to bill with double aspect, in Barnett v. Dollison, 125 Fla. 254, 169 So. 665.

Cited in Spitzer-Rorick T rust, etc., Bank v. Thompson, 107 Fla. 752, 755, 143 So. 865; Gamble v . Gamble Holding Corp., 120 Fla. 340, 353, 162 So. 886.

HISTORY . § 63.32

§ 32, ch. 14658, 1931; CGL 4902(13).

ANNOTATION. The first sentence of this section contemplates

that the defendant may file his answer or anv other defensive pleadings in the clerk's office o;,_ the Rule Day next succeeding that fixed for entry of an appearance, but this does not preclude the defendant from filing motion to test the jurisdic­tion . Bowmall v. Bowmall, 127 Fla. 747, 753, 174 So. 14.

"To allow complainant to wait three and one­half years after the expiration of the last of four orders extending the time for taking testimony. and without any attempt to revive the cause or to obtain leave of court to file an answer to defend­ant's answer, to file such answer is not according to the rules of equity practice." Hancock v. Han­cock, 128 Fla. 684, G92, 175 So. 734.

Where there was no issuance or service of sum­mons, of course no appearance day and time for filing the answer was fixed. Smith v. Housing Authority, 148 Fla. 195, 198, 3 So. (2d) 880.

HISTORY. § 63.33

§ 33, ch. 14658, 1931; CGL 4902(14).

ANNOTATION. I. Demurrers and Substitute Therefor.

A. Generally. B. Grounds for Motion and Illustrative

Cases. C. Appellate Procedure. D. Decisions under Former Practice.

Where original bill sought to cancel tax deed an amendment which sought also to foreclose a mortgage did not constitute a departure in plead-ing. Hughes v. Shaner, 128 Fla. 183, 187, 174 So. II. 400.

Pleas and Substitute Therefor.

I. DEM:URRERS AND SUBSTITUTE THEREFOR.

A. Generally.

A bill seeking to foreclose a mortgage and also asking for relief in the alternative that, if the mortgage be, found to be defectively executed, a lien be declared on the property as the separate This section refers to a motion to dismiss the statutory property of a married woman, is author- bill by reason of insufficiency to constitute a valid ized under this section. Oliver v. Sperry, 122 Fla. cause of action in equity. Irwin v. Gilson Realty 428, 432, 165 So. 560. Co., 117 Fla. 394, 400, 158 So. 77.

Joinder .not authorized.-A bill of complaint em- And other motions are not prohibited.- It car, bracing a cause of action against defendant hus- hardly be said that by providing for testing the band for maintenance, suit money and solicitor's sufficiency of a bill by motion to dismiss, this sec­fee, and also a cause of action against said defend- tion was designed to prohibit the use of all other ·ant and his son to enjoin an alleged unlawful pas- varieties of motions in chancery causes. Irwin v. session and retention of the complainant's prop- Gilson Realty Co., 117 Fla. 394, 400, 158 ·So. 77. erty, was held multifarious, and the joinder of said The motion to dismiss supersedes demurrer un­causes of action is not authorized by this section. der the old practice, · and is equivalent thereto. Hendrie v. Hendrie, 118 Fla. 478, 482, 159 So. 667. Barnett v. Dollison, 125 Fla. 254, 261, 169 So. 665;

Bill ·of complaint by widow and minor child of Roney v. Miami Beach, 148 Fla. 52, 56, 3 So. (2d) insured on two policies of life insurance was held 701; Ringling v. Ringling, 119 Fla. 210, 211, 161

[ 256]

§ 63.34 !<.LORIDA CHANCERY PROCEDURE LAW § 63.34

So. 406; Whittaker v~ Eddy, 109 Fla. 535, 547, 147 So. 868; Brooks v. Miami Bank, etc., Co., 116 Fla. 589, 601, 156 So. 757; Chappell v. Watson, 119 Fla. 711, 160 So. 867; Warren v. Tampa Mtg. In­vestors' Co., 112 Fla. 555, 560, 150 So. 738; Win­ter Haven v. Summerlin, 114 Fla. 727, 731, 154 So. 863; Florida New Deal Co. v. Crane Co., 142 Fla. 471, 473, 194 So. 865.

The effect of this section is to prescribe the mo·· tion to dismiss as the means of attack upon a bill for every defense in point of law arising upon the face of the bill. Brooks v. , Miami Bank, etc., Co.,

Jl16 Fla. 589, 601, 156 So. 757. For most practical purposes.- "The motion to

dismiss for most practical purposes is the substi­tute for and the equivalent of a general demurrer." Pohl Beauty School v. Miami, 118 Fla. 664, 670, 159 So. 789.

In Hewitt v. Punta Gorda State Bank, 108 Fla. 39, 40, 145 So. 883, Brown, ]., was inclined to think that a motion to dismiss, under this section, should be considered, for most practical purposes, as the equivalent of a general demurrer, so that the chancellor would be authorized to grant the motion with leave to amend, or require an amend­ment within a ·specified time to meet the objec­tions raised by the motion to dismiss, otherwise the bill to stand dismissed.

The motion tests the sufficiency of the allega­tions of the bill. Florida New Deal Co. v. Crane Co., 142 Fla. 471, 473, 194 So. 865; Irwin v. Gilson Realty Co., 117 Fla. 394, 158 So. 77; Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 79; Archibald v. Curry, 140 Fla. 189, 190, 191 So. 308.

"The sufficiency of the allegations of a bill of complaint is tested on motion to dismiss. The motion to dismiss reaches all infirmities in the bill of complaint formerly reached by general demur­.rer. See Dodson v. Florida Nursery, etc., Co., 138 Fla. 887, 190 So. 695." Roney v. Miami Beach, 148 Fla. 52, 56, 3 So. (2d) 701.

And admits those well pleaded. - A motion to dismiss a bill of compiaint admits the allegations of the bill which are well pleaded. Archibald v. Curry, 140 Fla. 18!l, 191 So. 308; Florida New Deal Co. v. Crane Co., 142 Fla. 471, 473, 194 So. 865; Armstrong v. Richards, 128 Fla. 561, 175 So. 340; Roney v. Miami Beach, 148 Fla. 52, 56, 3 So. (2d) 701; Kathleen Citrus Land Co. v. Lakeland, 124 Fla. 659, 661, 169 So. 356, citing Jacksonville v. Shaffer, 107 Fla. 363, 144 So. 892; Yates v. St. Johns Beach Develop. Co., 118 Fla. 788, 160 So. 197.

"The motion to dismiss the bill admits for pur­poses of the argument the allegations well pleaded." Pohl Beauty School v. Miami, 118 Fla. 664, 670, 159 So. 789.

Including motion to dismiss in answer is per­missible under this section. Seward v. Seward, 145 Fla. 701, 704, 200 So. 78.

"The motion to dismiss cannot be aided by the answer, therefore the court will consider only the facts alleged in the bill but nothing dehors the bill." Kearley v. Crawford, 112 Fla. 43, 51, 151 So. 293 (dis. op.).

But the answer may be considered in aid of bill. Kearley v. Crawford, 112 Fla. 43, 51, 151 So. 293 (dis. op.), citing Orange Belt Land Exch. v. Speer, 100 Fla. 182, 129 So. 779.

Though where no answer is filed the court on motion to dismiss the bill of complaint will con­sider only the facts alleged in the billr but nothing dehors · the bill. Kathleen Citrus Land Co. v. Lakeland, 124 Fla. 659, 661, 169 So. 356. ·

A motion to dismiss seeks to finally terminate the suit by dismissing the bill. Lykes Bros. Flor· ida Co. v. King, 125 Fla. 101, 103, 169 So. 595.

"And, if granted, results in a final decree for the defendant unless the chancellor makes his order sustammg such motion conditioned upon an amendment of the bill to state a better cause in equity .. Brigqt · Farms v. Broward County. Port Authonty, 117 Fla. 361, 158 So. 70; Hew1tt v. Punta Gorda State Bank, 108 Fla. 39, 145 So. 883; Pohl Beauty School v. Miami, 118 Fla. 664, 15~1 So. 789; Warren v. Tampa Mtg. Investors' Co., 112 Fla. 555, 150 So. 738; Wettstein v. Gilbert, 105 Fla. 427, 141 So. 297." Lykes Bros. Florida Co. v. King, 125 Fla. 101, 103, 169 So. 595.

"One of several "defendants may in his' exclusive interest move to dismiss a bill whose allegations, however good they may be as to one or more of the remaining defendants, show no ground for the relief sought as to the particular defendant mov­ing the dismissal." Brooks v. Miami Bank, etc., Co., 116 Fla. 589, 601, 156 So. 757, holding that order sustaining motion related only to defendant making motion and not to affect other defendants who were sought to be charged in a different right.

Cited in Windham v. Windham, 144 Fla. 563, 198 So. 202.

B. Grounds for Motion and Illustrative Cases. Grounds for demurrer under the old practice are

grounds to dismiss under this section. Williams v. Ricou, 143 Fla. 360, 367, 196 So. 667; Franklin Life Ins. Co. v. Tharpe, 118 Fla. 832, 160 So. 199.

A bill without equity should be dismissed on motion under this section. Masser v. London Operating Co., 106 Fla. 474, 495, 145 So. ·72, 79, citing McNeill v. Lyons, 105 Fla. 243, 140 So. 921.

But the motion should be denied if there is any equity in the bill. Chappell v. Watson, 119 Fla. 711, 713, 160 So. 867; Winter Haven v. Summer­lin, 114 Fla. 727, 154 So. 863; Po hi Beauty School v. Miami, 118 Fla. 664, 670, 159 So. 789.

A motion to dismiss should be denied if the bill ·contains any ground for equitable relief. Kathleen Citrus Land Co. v. Lakeland, 124 Fla. 659, 661, 169 So. 356; Archibald v. Curry, 140 Fla. 189, 190, 191 So. 308; Matthews v. Wilkerson, 132 Fla. 753, 182 So. 439; Florida New Deal Co. v. Crane Co., 142 Fla. 471, 473, 194 So. 865; Masser v. London Operating Co., 106 Fla. 474, 495, 145 So. 72, 79; Lykes Bros. Florida Co. v. King, 125 Fla. 101, 102, 169 So. 595.

"If the bill states a case entitling the plaintiff to any relief under any special prayer or under the implied prayer for general relief, it should not be dismissed. See Hewitt v. Punta Gorda State Bank, 108 Fla. 39, 145 So. 883." Lamar v. Ray, 132 Fla. 704, 714, 182 So. 292. See annotation un­der § 63.28.

Even though there are special prayers and alle­gations which might not be C<ipable of being con­sidered or allowed in an equitable proceeding or by way of equitable relief, a motion to dismiss a bill for want of equity should be denied if there is

Fla. Stat.-9 [ 257]

§ 63.:U FLORIDA CHANCERY PROCEDURE LAW § 83.:U

any equity in the bill. Winter Haven v. Summer­lin, 114 Fla. 727, 731, 154 So. 863.

The existence o·f an adequate remedy at law is not a good ground for a motion to dismiss a bill in view of the provisions of § 63.75 for transfer­ring to the law court cases erroneously brought in equity. Brooks v. Miami Bank, etc., Co., 116 Fla. 589, 601, 156 So. 757; Winter Haven v. Summer­lin, 114 Fla. 727, 731, 154 So. 863.

Multifariousness.- There is no positive inflexi­ble rule as to ·what may constitute multifarioub­ness which is fatal on motion to dismiss under this section. Franklin Life Ins. Co. v. Tharpe, 118 Fla. 832, 836, 160 So. 199.

There exists, certainly, two general and distinct forms of multifariousness. One occurs when di~­t inct and disconnected subjects, matters or causes are united in the same bill of complaint. The other occurs in joining in the same suit, either as defendants or as complainants, parties who have I1ot a common interest in the subject of litigation and have no connection with each other insofar as the issues in litigation are concerned. It has been repeatedly held that whenever multifariousness for either of these grounds plainly appears in a bill of complaint it would constitute grounds for demurrer under the old .practice and, therefore, a ground to dismiss under this section. Williams v. Ricou, 143 Fla. 360, 367, 196 So. 667; Franklin Life Ins. Co. v. Tharpe, 118 Fla. 832, 836, 160 So. 199, citing Arcadia Mercantile Co. v. Branning, 59 Fla. 428, 52 So. 588; Trust Co. v. Crider, 102 Fla. 593, 136 So. 434.

"Objection to a bill on the gn:mnd of multifari­ousness will not avail a defendant interested in every important phase of the litigation. Wright v. vVright, 75 Fla. 7, 77 So. 616." Davant v. Brooksville, 107 Fla. 292, 294, 144 So. 666.

Objection to prayers or lack of prayers cannot be raised by motion to dismiss. Lamar v. Ray, 132 Fla. 704, 711, 182 So. 292. See annotation un­der § 63.28.

A bill seeking to enforce a false and fictitious claim based upon padded accounts was properly dismissed. See Langford ,v. Reed, 69 Fla. 198, 6fl So. 73. It did not constitute such a transferable case under § 63.75. Alsheimer v. Palmer, 119 Fla. 335, 337, 161 So. 559.

Failure to comply with statute requiring pay­ment of state tax was held ground for dismissal of bill filed by foreign corporation. Irwin v. Gilson Realty Co., 117 Fla. 394, 400, 158 So. 77.

Motions to dismiss properly denied. Gables Racing Ass'n v. Persky, 116 Fla. 77, 85, 156 So. 392; Roney v. Miami Beach, 148 Fla. 52, 57, 3 So. (2d) 701; Lykes Bros. Florida Co. v. King, 125 Fla. 101, 103, 169 So. 595; as to bill with doublt' aspect, in Barnett v. Dollison, 125 Fla. 254, 169 So. 665.

Or improperly ~ranted.- Richardson v. Myers, 106 Fla. 136, 143 So. 157.

Where original bill sought to restrain city from closing beauty school for failure to pay a shop Ji. cense tax which complainant was not legally re­quired to pay, and an an1endment thereto showed that the purpose proceeded from an unlawful ex­ercise of apparent power in the city's agency, it was held that the dismissal of the amended bill was erroneous . Pohl Bealty School v. Miami, 118 Fla. 664, 670, 159 So. 789.

C. Appellate Procedure. Where motion to dismiss bill was based upon

grounds which would have constituted grounds for demurrer prior to the enactment of this sec­tion, the order denying the motion should be re­versed on appeal with directions that the motion to dismiss be granted, with permission for the complainant to amend his bill of complaint with­in a reasonable time to be named by the court. Brickell v. Palbicke, 123 Fla. 508, 511, 167 So. 44.

D. Decisions under Former Practice. For some of the numerous decisions under the

former law relating to demurrers (§§ 4912-4915, Comp. Gen. Laws ), see Taylor v. Brown, 32 Fl~ .. 334, 13 So. 957; West v. Reynolds, 35 Fla. 317, 17 So. 740; West v. Reynolds, 35 Fla. 317, 17 So. 740; Florida Southern Ry. Co. v. Hill, 40 Fla. 1, 23 So. 5·66, 74 Am. St. Rep. 124; Durham v. Ste­phenson, 41 Fla. 112, 25 So. 284; Louisville, etc., R. Co. v. Gibson, 43 Fla. 315, 31 So. 230; Spring­field Co. v. Ely, 44 Fla. 319, 32 So. 892; Johnson v. McKinnon, 45 Fla. 388, 34 So. 272; Lindsley v. Mciver, 51 Fla. 463, 40 So. 619; Taylor v. Ma­thews, 53 Fla. 776, 44 So. 146; McClinton v. Chapin, 54 Fla. 510, 45 So. 35; Dees v. Smith, 55 Fla. 652, 46 So. 173; Wood v. Wood, 56 Fla. 882, 47 So. 560; Murrell v. Peterson, 57 Fla. 480, 49 So. 31; Arcadia Mercantile Co. v. Branning, 59 Fla. 428, 52 So. 588; Taylor v. Taylor, 64 Fla. 521, 60 So. 116; Mitchell v. Mason, 65 Fla. 208, 61 So. 579; Warren v. Warren, 66 Fla. 138, 63 So. 726; Marsh v. Marsh, 72 Fla. 142, 72 So. 638; Seeba v. Wolf Bros. Shoe Co., 73 Fla. 227, 74 So. 204; Prince v. Mahin, 73 Fla. 525, 74 So. 696; West Palm Beach v. Ryder, 73 Fla. 558, 74 So. 603: Merritt v. Mace, 73 Fla. 883, 75 So. 51; Craft v. Craft, 74 Fla. 262, 76 So. 772; Gardenia Estates v. Grove Land, etc., Co., 104 Fla. 284, 288, 140 So. 787; Federal Land Bank v. Godwin, 107 Fla. 537. 136 So. 513, 145 So. 883; Williams v. Johnson, 109 Fla. 296, 146 So. 898; as to former practice of in­corporating demurrer in answer, in Head v. Light­foot, 61 Fla. 608, 54 So. 898; McRainey v. Jarrell, 59 Fla. 587, 52 So. 304; Terra Ceia Estates v. Tay­lor, 68 Fla. 261, 67 So. 169.

II. PLEAS AND SUBSTITUTE THEREFOR. Challenge to jurisdiction.-Paragraph (2) of

this section does not preclude a defendant from testing the jurisdiction of the court in any other manner than by including his challenge to the ju­risdiction in an answer. If the defendant wishes to challenge the jurisdiction of the court he may

. file a special appearance for that purpose only and may therewith present his challenge of the juris­diction in an equity suit by a verified motion. It is immaterial whether it be called a plea to the jurisdiction or a motion challenging the jurisdic­tion. It is the substance and not the fo rm which should be looked to. Bowmall v. Bowmall, 127 Fla. 747, 753, 174 So. 14.

Pleas o£ privilege as to venue are abolished and the matters contained in them should be incorpo­rated in the answer. Seward v. Seward, 145 Fla. 701, 200 So. 78; Evans v. Evans, 141 Fla. 860,' 194 So. 215; Crockett v. Volunteer State Life Ins. Co., 142 Fla. 750, 751, 196 So. 297, overruling South­ern Brewing Co. v. May, 122 Fla. 443, 165 So. 627. See Patten v. Mokher, 134 Fla. 433, 436, 184 So. 29.

[ 258]

§ 63.34 F.LORIDA CHANCERY PROCEDURE LAW § 63.34

But where no objection was made to the man­ner of presenting the defense of privilege, the su­preme court will dispose of the matter on its mer­its. Evans v. Evans, 141 Fla. 860, 862, 194 So. 215.

Defendant's statutou privilege as to venue in a divorce suit was not waived by exe::rcising it by plea incorporated in an answer containing also a motion to dismiss. Seward v. Seward, 145 Fla. 701, 704, 200 So. 78.

Decisions under former law,-For some of the numerous decisions under the former law relating to pleas (§§ 4912-4915, Comp. Gen. Laws), see Hollingsworth v. Handcock, 7 Fla. 338; Crump v. Perkins, 18 Fla. 353; Henderson v. Chaires, 35 Fla. 423, 17 So. 574; Trower v. Bernard, 37 Fla. 226, 20 So. 241; Spaulding v. Ellsworth, 39 Fla. 76, 21 So. 812; Stackpole v. Hancock, 40 Fla. 362, 24 So. 914, 45 L. R. A. 814; DaCosta v. Dibble, 40 Fla. 418, 24 So. 911; Durham v. Stephenson, 41 Fla. 112, 25 So. 284; Wilson v. Mitchell, 43 Fla. 1.07, 30 So. 703; Austin v. Hoxsie, 44 Fla. 199, 32 So. 878; Moore v. Clem, 45 Fla. 476, 34 So. 305; Keen v. Brown, 46 Fla. 487, 35 So. 401; Dekle v. Barkley, 48 Fla. 250, 37 So. 581; Ocala Foundry, etc., Works v. Lester, 49 Fla. 347, 38 So. 5'3; Lindsley v. Mciver, 51 Fla. 463, 40 So. 619; Lott v. Barnes, etc., Co., 57 Fla. 468, 48 So. 994; Har­vey v. Morgan, 58 Fla. 427, 51 So. 140; Theisen v. Whiddon, 60 Fla. 372, 53 So. 642; Mitchell v. Ma­son, 61 Fla. 692, 55 So. 387; Pinellas Packing Co. v. Clearwater Citrus Growers, Ass'n, 65 Fla. 340, 61 So. 625.

feet answer to each fact alleged in the bill. If h4 knows they are true he must admit them. Blan­ton v. Woodward, 107 Fla. 691, 701, 144 So. 300.

"If a defendant undertakes to answer any rna· terial allegation of the bill, he is required to make it full, true and direct, and failing to do so, the effect may be the same as to omit it." Clermont­Minneola Country Club v. Loblaw, 106 Fla. 122, 127, 143 So. 129.

It is not sufficient merely to state that he "nei­ther admits nor denies." He must, as to all ma­terial allegations e1ther admit them, or, if he has no knowledge of the facts alleged, he may dis­claim such knowledge. Clermont-Minneola Coun­try Club v. Loblaw, 106 Fla. 122, 127, 143 So. 12\J; Bostwick v. Van Sant, 98 Fla. 565, 124 So. 14; Blanton v. Woodward, 107 Fla. 691, 701, 144 So. 300 . .

Defendant's answer to certain paragraphs of the bill of complaint under this section amounted to no more than admissions of the allegations of such paragraphs where it alleged that for lack d sufficient information defendant neither admits nor denies the allegations contained in said para­graphs. Williams v. Fenandina, 138 Fla. 418, 419, 189 So. 830.

The answer should be certain and directed to so much of bill as it is necessary to answer. Christo­pher v. Mungen, 66 Fla. 467r 63 So. 923.

Affirmative averments in an answer that are not required by the bill, that do not grow out of any transaction or facts alleged in the bill or admitted in the answer, constitute new matter ·not respoi1-

§ 63.34 sive to the bill. Griffith v. Henderson, 55 Fla. 625, HISTORY. 45 So. 1003; Watson v. Bair, 73 Fla. 255, 74 So.

§ 34, ch. 14658, 1931; CGL 4902(15).. 317. Where an answer is confined to such facts as

ANNOTATION. are necessarily required by the bill and those in-I. Generally. separably connected with them, forming a part of

II . Illustrative Cases. one and the same transaction, the answer is re-III. Signature and ·verification. . spons1ve, as well when it discharges, as when it IV. Amendments. i charges, the detendant. Maxwell v. ] acksonville V. Striking Out. Loan, etc., Co., 45 Fla. 425, 34 So. 255; Southern

I. GENERALLY. Lbr., etc., Co. v. Verdier, 51 Fla. 570, 40 So. 676; Derivation of section.-This section was de- Watson v. Bair, 73 Fla. 255, 74 So. 317.

rived from §§ 3118 and 3119 Revised General Where the facts are within defendant's kn<iwl­Statutes of 1920 (§§ 4904 and 4905 Comp. Gen. edge he must answer positively (Bostwick v. Van Laws 1927) which originally constituted a portion Sant, 98 Fla. 565, 124 So. 14), and an evasive and of .§ 1 of Chapter 6907, Acts 1915, more recently qualifying answer may amount to an admission. reenacted as § 34 of Chapter 14658, known as the Citizens' Bank, etc., Co. v. Grey, 100 Fla. 958, 963, "1931 Chancery Act". Blanton v. Woodward, 107 130 So. 274; Blanton v. Woodward, 107 Fla. 691, Fla. 691, 700, 144 So. 300. 701, 144 So. 3CO.

As a general rule a defendant's answer is now a "Defendant in his answer cannot shelter him-defense and not a discovery for the benefit of the self behind equivocal, evasive, or doubtful terms, plaintiff. Such rule may not be applicable to that and thus · mislead complainant, nor behind a gen­portion of an answer of a defendant setting forth era! denial which amounts to no more than a neg­an account in a suit for accounting. The answer ative pregnant or an evasion of the points of sub­has no more reason to claim probative force than stance." Citizens' Bank, etc., Co. v. Grey, lOU the bill. Every basis or reason for the existence Fla. 958, 963, 130 So, 274, citing McBride v. War­of the old rule regarding the probative force of the ley, 66 Fla. 564, 64 So. 235. sworn answer has been swept away. Whittaker v. And averments not denied may be deemed con-Eddy, 109 Fla: 535, 546, 147 So. 868. fessed.-Defendants' failure in their answer, to

This se<:tion requires the answering defendant specifically deny the allegations of the sixth para­to either spECifically (1) admit, or (2) deny, or (3) graph of the bill of. complaint, or to state that de­explain the facts upon which the defendant relies, fendants were without knowledge as to the same, unless he is without knowledge, in which case he by force of th e statute, operated as an admission must so state, such sta tement operating as a de· of the allegations contained in the sixth paragraph nial. Clermont-Minneola County Club v. Loblaw, of the bill. Sellars v. First Nat. Bank, 141 Fla. 106 Fla. 122, 127, 143 So. 129. 784, 788, · 03 So. 819, citing Clermont-Minneola ·

He is required to make full, true, direct <.nd per- Country Club v. Loblaw, 106 Fla. 122, 143 So.' [ 2,59 ]

§ 63.34 J;<,LORIDA CHANCERY PRO.CEDURE LAW § 63.34

129 ; Exchange Nat. Bank v. Clark-Ray Johnson Co., 95 Fla. 734, 116 So. 647; Citizens' Bank, etc., Co. v. Grey, 100 Fla. 958, 130 So. 274.

In First Nat. Bank v. Evans, 100 Fla. 740, '745, 130 So. 18, it is ,said that the statute changed the former rule that "whc;re a general replication was filed to an answer in chancery, it put in issue all matters alleged in the bjll and not admitted in the answer, and it was incumbent upon complainant to prove such matters by at least a preponderance of the evidence. Lykes v. Beauchamp, 49 Fla. 333, 38 So. 603; Griffith v. H enderson, 55 Fla. 625, 45 So. 1003; Pittman v. Milton, 69 Fla. 304, 68 So. 658; Watson v. Bair, 73 Fla. 255, 74 So. 317."

"The statute does not permit the defendant to group several claims asserted by the bill in one paragraph of the anStWer in pleading thereto but the defendant must plead to 'each claim' asserted by the bill separately. This does not mean, how­ever, nor was it contemplated by the statute, that the defendant should in substance copy in his answer each allegation of the bill, or paragraph thereof, and expressly aver that he admits, denies or is without knowledge as to any such allegation; but in order to simplify the method of reaching an issue as to each fact set up by a bill, each par­agraph so alleging a separate fact should be an­swered separately without grouping paragraphs of the bill in one averment of the answer." Blanton v. Woodward, 107 Fla. 691, 701, 144 So. 300.

Allegations of a bill that are admitted by the an­swer are taken as true and require no proof. The material allegations of the bill -that are denied by the answer are to be proved by the complainant. The averments in the answer of new matter not responsive to the allegations are to be proved by the defendant. Griffith v. Henderson, 55 Fla. 625, 45 So. 1003.

Cited in Kent v. Knowles, 101 Fla. 1375, 133 So. 315.

II. ILLUSTRATIVE CASES. Answers held sufficient.-An answer by a devi­

see or heir of the mortgagor which alleges that the mortgage together with every other charge against the estate had been fully satisfied, with further allegations tending to raise a presumption of payment, is sufficient. Garrison v. Parsons, 45 Fla. 335, 33 So. 525.

Answer held to state defense to mortgagee's claim for deficiency judgment. Everglades Sugar, etc., Co. v. O 'Byrne, 113 Fla. 736, 737, 152 So. 22.

Averment operating as denial-Where a para­graph of a bill for injunction alleged that an ex-

. aminer for the Florida securities commission hac been directed by the commission to bring the suit, and the answer averred that defendants were without knowledge of such allegations, this op­erated as a denial of the alleged authority given by the commission to bring the 'suit. Ryan v. State, 128 Fla. 1, 13, 174 So. 438.

Where paragraphs of answer were directed spe­cifically to certain divisions of bill, which were successively numbered, denials 'in paragraphs. were held sufficient. Mahin v. Mahin, 131 Fla. 54Q, 179 So. 651.

III. SIGNATURE AND VERIFICATION.

be~k Inv. Co. v. Raff, 102 Fla, 942, 948, .136 So. 683.

But formerly both signature and verification were required.-Prior ·to Chapter 14658, Acts 1931, in a line of decisions beginning with Ballard v. Kennedy, 34 Fla. 183, 16 S9. 327, it had consist­ently been held that the answer of the d,efendant must be signed and verified by him. Humphries ''· Hester, 103 ·Fla. 1079, 1082, 139 So. 147, 141 So. 749. .

Unless answer under oath was waived.-The old, or first, rule in equity . was that unless answer under oath was waived the defendant was required to answer under oath, and the complainant could not deprive the defendant of the right to answer under oath. The next, or second rule of law was brought about in 1871 when the United States su­preme court adopted a rule of court in almost the exact language of a former statute of Florida passed in 1917, § 3136 R. G. S., which was repealed by the "1931 Chancery Act." The federal rule was the law of Florida until its repeal by the adoption of the new Federal equity rules of 1912. It again became the law of Florida by statute in 1917 and continued such until the adoption of thl! "1931 Chancery Act." Whittaker v. Eddy, 109 Fla. 535, 543, 147 So. 868.

The unusual function now performed by the an­swer seems to eliminate the right of the defendant to make oath to his answer, when not required by the bill, and thereby obtain the advantages se­cured to him by the original practice. Whittaker v. Eddy, 109 Fla. 535, 546, 147 So. 868.

IV. AMENDMENTS. "Practically the same principles governing the

amendment of bills apply also to the amendment of answers." Watkins v. Watkins, 123 Fla. 267, 274, 166 So. 577. See annotations to §§ 63.26, 63.29.

Where there has been a final hearing, an appeal, a reversal of the decree and a remanding of the case, as a general rule, an amendment to an an­swer by the addition of facts which must have been known at the time of the filing of the orig­inal bill will not be allowed. Hart v. Sanderson, 18 Fla. 103.

An amended answer to a bill to cancel a tax · certificate should not be stricken as a mere repe­tition of a former answer, when it contains as ad­ditional matter a general denial of all allegations not specifically admitted and a claim for reim­bursement for money paid out for taxes. Robert­son v. Dunne, 45 Fla. 553, 33 So. 530.

And equity courts have power on motion, notice and cause shown, to permit amendments to an­swers to bills in chancery, although such amend­ments may qualify or alter the original state­ments. Saunders v. Richard, 35 Fla. 28, 16 So. 679.

"The court may allow the defendant to set up a counterclaim by amendment to the answer. But where the amendment setting up a counterclaim is not sought to be made until after a long series of hearings before a ·master, leave to amend may be refused. Leave to amend the answer at the trial may be granted, but not where it would raise new issues and take the plaintiff by surprise." Wat­

Personal signature of defendant to answer is kins v. Watkins, 123 Fla. 267, 275, 166 So. 577, not now necessary. Humphries v. Hester, 103 quoting McCarthy, Florida Chancery Act, Ann. Fla. 1079, 1082, 139 So. 147, 141 So. 749, See Del- 2nd Ed. p. 91.

[ 260]

§ 83.35 F.LORIDA CHANCERY PROCEDURE LAW § 63.35

Denial of motion to amend answer to bill for re­establishment of lost deed held not abuse of dis­cretion. Watkins v. Watkins, 123 Fla. 267, . 166 So. 577.

V. STRIKING OUT. Where this statute is violated offending aver­

merits of the answer may be stricken either on motion of complainant or by the court of its own motion. Blanton v. Woodward, 107 Fla. 691 , 701, 144 So. 300.

'Where a defendant in his answer avers that he '"neither admits nor denies" a stated material al­legation of a bill of complaint but "demands strict proof," it is equivalent to no answer, and is there­fore subject to a motion to strike. Clermont­

.Minneola Country Club v. Loblaw, 106 Fla. 122, 127, 143 So. 129.

§ 63.35 HISTORY.

§ 35, ch. 14658, 19S1; CGL 4902(16).

.f\NNOTATION. I. Stating Counterclaim in Answer.

A. Generally. B. Equitable Counterclaims.

· C. Legal Counterclaims. II. Prayer for Relief.

III. Service of Copy and Process. IV. Cross-Bill in Lieu of Counterclaim.

I. STATING COUNTERCLAIM IN ANSWER.

Land, etc., Co., 104 Fla. 284, 140 So. 787; Chicago Trust Co. v. Knabb, 142 Fla. 767, 779, 19·6 So. 200; Miles v. Miles; 117 Fla. 884, 888, 158 So. 520.

For ·cases citing paragraph (1) of this section, see Baylarian v. Tunnicliffe, 105 Fla. 484, 141 So. 609, 144 So. 844; ·Coral Realty Co. v. Peacock Holding Co., 103 Fla. 916, 921, 138 So. 622; Vil.as v. Vilas, 103 Fla. 1l24, 138 So. 731; Capital Fi­nance Corp. v. Oliver, 116 Fla. 790, 15·6 So. 736; Florida State Finance Co. v. Lamar Land Co., i24 Fla. 282, 287, 168 So. 246.

B. Equitable Counterclaims. Any equitable ·claim of defendant which grows

out of "the subject matter of the bill" must be set up in defendant's counterclaim while the counterclaim not growing out of the subject­matter may be set up if the defendant wishes. 'l'i!ton v. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142. See Lang v. Quaker Realty Corp., 131 Fla. 179, 183, 179 So. 144.

The cause of action pleaded in a counterclaim must be of equitable cognizance and like a cross bill must be connected with the subject matter of the original bill, otherwise it need not be pleaded. Tilton v. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142.

Counterclaim must have connection with sub­ject matter of suit.-"It is observed that if the defendant in equity sets up a count~rclaim in the same suit it must be a claim (1) 'arising out of the transaction which is the subject matter of the

A. Generally. suit; ' or, (2) he 'may' set out any set-off or Derivation of section.-Paragraph (1) of this counterclaim against the plaintiff which might be

section is in practically the same language as the the subject of an 'independent suit in equity' portion of § 1 of Chapter 6907, Acts 1915, later against complainant,-'so as to enable the court comprising § 4906, Comp. Gen. Laws, which was to pronounce a final judgment in the same suit in substance a copy of former Federal equity both on the original and cross claims.' This rule 30. Bates v. Lanier, 75 Fla. 79, 82, 77 So. court is committed to the proposition that even 628; Hendricks v. Stark, 99 Fla. 277, 282, 126 the subject matter of the counterclaim,-the 'in­So. 293; Lovett v. Lovett, 93 Fla. 611, 112 So. dependent suit in equity' must have some con-768; Southern Ferro Concrete Co. v. Federal nection with 'the transaction which is the sub­Terra Cotta Co., 79 Fla. 376, 84 So. 171; Krum- ject matter' of complainant's suit. Lovett v. rine v. Krumrine, 90 Fla. 368, 106 So. 131 ; Blan- Lovett, 93 Fla. 611, 112 So. 768; Turner v . Utley, ton v.· Woodward, 107 Fla. 691, 696, 144 So. 300. 93 Fla. 910, 112 So. 837; Norris v. Eikenberry, See Paine v. Kemp, 77 Fla. 531, 535, 82 So. 53; 103 Fla. 104, 137 So. 128. Otherwise it is sub­Norris v. Eikenberry, 103 Fla. 104, 109, 137 So. ject to complainant's objections." Blanton v. 128. And the said paragraph should be con- Woodward, 107 Fla. 691, 696, 144 So. 300. strued in accordance. with the interpretation of And claim relief against original complainant fed eral courts construing said rule, when such" or affect his rights.-A counterclaim pleaded in interpretation is not in conflict with the laws of the answer of a defendant in a suit in equity the state. Tilton v. Horton, 103 Fla. 497, 137 So. must claim relief against the original complain-801, 139 So. 142. ant, or the matter set up therein must affect the

Substitute for cross bilL-In enacting the first rights of the original complainant. Turner v. paragraph of this section it was the broad pur- Utley, 93 Fla. 910, 112 So. 837. pose and intent of the legislature to afford a sim- Necessity for counterclaim growing out of bill. plified and expeditious method for presenting in -The counterclaim referred to in the first part the answer matters theretofore the subject of a of paragraph (1) , like the counterclaim in the cross bill. Turner v. Utley, 93 Fla. 910, 917, 112 next clause, must be such as would be "the sub­So. 837. ject of an independent suit in equity against"

An answer seeking affirmative relief under this complainant-the • only difference being that the section occupies the position of a cross bill under first counterclaim must grow out of the bill while the old practice. Norris v. Eikenberry, 103 Fla. the second counterclaim need' not. Tilton v. 104, 137 So. 128. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142.

Miscellaneous.-For cases applying paragraph In Turner v. Utley, 93 Fla. 910, 112 So. 837, it (1) of· this section, see Bourne v. State Bank, 106 was held that the cause of action pleaded in the Fla. 46, 142 So. 810; Clermont-Minneola Coun- counterclaim must 'be of equitable cognizance, try Club v. Coupland, 106 Fla. 111, 143 So. '133, and as was the case · with the cross bill must set 84 A.. L. R. 1354; Gardenia Estates v. <5rove up matters arising out of or connected with the

[ 261]

( 63.36 FLORIDA CHANCERY PROCEDURE LAW § 83.37

subject matter of the original bill and germane thereto, or must set out matters arising out of of the transaction which is the subject matter of the suit. For other ~ases discussing the applica­tion of counterclaims under the statute, see Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So. 473; Farrell v. Forest Inv. Co., 73 Fla. 191, 74 So. 216, 1 A. L. R. 25; Clermont-Minneola Country Club v. Loblaw, 106 Fla. 122, 129, 143 So. 129.

Illustrative case. - Counterclaim, setting up paving lien as being prior to mortgage being foreclosed, held to have arisen . out of transac­tion which was "the subject matter· of the suit," so that the court committed no error in refus­ing to strike that portion of the answer. Cler­mont-Minneola Country Club v. Loblaw, 106 Fla. 122, 129, 143 So. 129.

The fact that the original bill should be dis­missed does not affect an answer which prays for affirmative relief, and contains in itself suffi­cient allegations of matters of equitable cogni­zance. Norris v. Eikenberry, 103 Fla. 104, 137 So. 128.

C. Legal Counterclaims. A defendant may waive his right to a jury trial

of any purely legal counterclaim arising out of the subject matter of the suit by voluntarily pleading it in the equity suit. Blanton v. Wood­ward, 107 Fla. 601, 698, 144 So. 300.

A defendant is not obligated to set up by his counterclaim in a chancery suit a cause of action cognizable at law, but when he does he affirma­tively waives his objection to the equitable ju­risdiction and also his constitutional right to trial by jury. Tilton v. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142.

The reasons for requiring a defendant to plead his counterclaim only when it arose out of a claim "wqich might be the subject matter ·of an inde­pendent suit in equity against" complainant, may be found embedded in the Federal and State con­stitutions which preserve the right of trial by jury in actions at law. Tilton v. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142. See Norris v. Eikenberry, 103 Fla. 104, 117, 137 So. 128.

But claim not so arising cannot be set up over objection.-If defendant's claim is an independ­ent claim, not arising out of the subject matter of the suit and cognizable at law, as distinguished from an equitable one, it cannot be set up as a counterclaim over the objection of complainant, and is therefore subject to a motion to strike. Blanton v. Woodward, 107 Fla. 691, 698, 144 So. 300. See Norris v. Eikenberry, 103 Fla. 104, 137 So. 12"8, holding that a counterclaim, growing

that the demand could not be set off. McMullen v. Inland Realty Corp., 113 Fla. 476, 479, 152 So. 740, 156 So. 481.

II. PRAYER FOR RELIEF. Averment that affirmative relief not prayed for.

-In divorce ptoceedings defendant husband in his answer averred that plaintiff wife was guilty of desertion but that he did not pray for any affirmative relief. It was held that even if there had been sufficient evidence ' to grant him a divorce such averment would have precluded the chancellor from granting it to him. Raw­lins v. Rawlins, 144 Fla. 752, 198 So. 58'0.

Application . ...:...Paragraph (2) of this section was applied in divorce suit as to relief grantable under prayer for special relief. Cooper v. Cooper, 120 Fla. o07, 163 So. 35.

III. SERVICE OF COPY AND PROCESS. Answer not presenting counterclaim.-Answer

of holder of tax certificates in suit to foreclose mortgage held to present no co~nterclaim with­in the meaning of paragraph (3) of this section. Florida State Finance Co. v. Lamar Land Co., 124 Fla. 282, 287, 168 So. 246, cited in Lang v. Quacker Realty Corp., 131 Fla. 179, 183, 179 So. 144.

Guardian ad litem held without power to waive service of process as to minor defendants. Miles v. Miles, 117 Fla. 884, 888, 158 So. 520.

Decision under former law.-See Clermont­Minneola Country Club v. Coupland, 106 Fla. 111, 121, 143 So. 133, 84 A. L. R. 1354.

As to application of paragraph (3), of this sec­tion, see Dennis v. lvey, 134 Fla. 181, 183 So. 624; Capital Finance Corp. v. Oliver, 116 Fla. 790, 156 So. 736.

IV. CROSS BILL IN LIEU OF COUNTERCLAIM.

As to application of paragraph (5) of this sec­tion, see United States Fidelity, etc., Co. v. Mar­hall, 148 Fla. 286, 290, 4 So. (2d) 337.

As to cross bills under former law, see Byrne Realty Co. v. South Florida Farms Co., 81 Fla. 805, 829, 89 So. 318, cited in Norris v. Eiken­berry, 103 Fla. 104, 110, 137 So. 128. And see Hendricks v. Stark, 99 Fla. 277, 126 So. 293.

§ 63.36 HISTORY.

§ 36, ch. 14658, 1931; CGL 4902(17).

ANNOTATION. Cited in Mikesell v. Mikesell, 137 Fla. 108, 113,

188 So. 100 (dis. op.).

§ 63.37 out of the same transaction, to be pleaded under HISTORY. this section must be an equitable claim and not

§ 37, ch. 14658, 1931; CGL 4902(18). a legal one. Illustrative case.- In a suit to foreclose a ANNOTATION.

mortgage an alleged set-off attempted to be as- Special replications have long been superseded serted consisted only of a legal demand for by the practice of amending the bill and are en­money had and received upon which the oppo- tirely obsolete. Mallard v. Ewing, ·121 Fla. 654, site party had ' the right to demand and have a 658, 164 So. 674. trial by jury. Such demand was not the subject · And thil:, section definitely abolishes general of the independent suit in equity and had no con- replications.-Mallard v. Ewing, 121 Fla. 654, nection whatsoever, so far as it appears from the 658, 164 So. 674.

·answer, with any transaction connected with the If a counterclaim set up in an answer be re­mortgage attempted to be foreclosed. It was held garded as averring any new or affirmative matter

[ 262]

§ 83.38 FLORIDA CHANCERY PROCEDURE LAW § 83.40

it is deemed under this section to be denied by the plaintiff. Mallard v. Ewing, 121 Fla. 654, 658, 164 So. 674.

General rules as to hearing on bill and answer were not changed by this section. Douglass v. Tax Equities, 144 Fla. 801, 803, 198 So. 578.

The former statute dispensing with replica­tions in certain chancery cases (Chapter 6907, Acts 1915; § 4907 Comp. Gen. Laws of Florida, 1927) did not change the rule that where com­plainant had set a case down for l}earing, and it was heard upon bill and answer alone, all the. pertinent averments of the answer were taken as true (Smith v. Miami, 79 Fla. 509, 84 So. 379 ; Lee v. Bradley F ertilizer Co., 44 Fla. 787, 33 So. 456; Godwin v . Phifer, 51 Fla. 441, 41 So. 597; Goodyear Tire, etc. , Co. v. Daniel, 72 Fla. 489, 73 So. 592); and this was true whether the alle­gations of the answer were responsive or not, on the ground that no r eplication having been filed. defendant was deprived of the opportunity of proving his allegations. Seaboard Oil Co. v. Donovan, 99 . Fla. 129·6, 1303, 128 So. 821.

"Prior to the enactment of the Chancery Act in 19·31,· where plaintiff set the cause down for hearing on bill and answer before filing a repli· cation, and consequently before the cause was at issue, plaintiff was held to have admitted the truth of all averments of the answer. Goodyear Tire, etc., Co. v. Daniel, 72 Fla. 489, 73 So. 592 ; Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 128 So. 821. The admission applied to all pertinent averments of the answer, Saussey v. Liggett, 75 Fla. 412, 78 So. 334; Smith v. Miami, 79 Fla. 509, 84 So. 379, whether the averments were respon­sive to the bill or in confession and avoidance of it, Maxwell v. Jacksonville .Loan, etc., Co., 45 Fla. 425, 34 So. 255; Whittaker v. Eddy, 109 Fla. 535, 147 ·so. 868, and whether the answer was sworn to ·or not. Whittaker v. Eddy, 109 Fla. 535. 147 So. 868. All allegations of the bill not sufficiently · denied are taken as true." Douglass v. Tax Equities, 144 Fla. 801, 802, 198 So. 578.

Former law.-For decisions under former law relating to replications (Comp. Gen. Laws, §§ 4916-4918) , see Sanford v. Cloud, 17 Fla. 532 ; Pinney v. Pinney, 46 Fla. 559, 35 So. 95; Par ken v . Safford, 48 Fla. 290, 37 So. 567; Lykes v . Beauchamp, 49 Fla. 333, 38 So. 603; Gri ffi th v. Henderson, 55 Fla. 625, 45 So. 1003 : Mitchell v. Mason, 65 Fla. 208, 61 So. 579 ; Pittman v. Mil­ton, 69 Fla. 304, 68 So. 58 ; Watson v. Bair, 73 Fla. 255, 74 So. 317; Lafl in v. Gato, 50 Fla. 558, 39 So. 5·9; Viser v. Willard, 60 Fla. 395, 53 So. 501 ; Langford v. Read, 69 Fla. 198, 68 So. 72:1 ; Chapin v. Florida Commercial Co., 69 Fla. 261, 67 So. 872; Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614.

Cited in Bay View Estates Corp. v. Souther­land, 114 Fla. 635, 647, 154 So. 894.

§ 63'.38 HISTORY.

§ 38, ch. 14658, 1931; CGL 4902(19).

ANNOTATION. "The necessity for the provision grew out of

the abolishment of replications which renders it often difficult to know .when ·a cause is at · issue."

Bay View Estates Corp. v. Southerland, 114 Fla. 63·5, 647, 154 So. 894.

Applied in Mallard v. Ewing, 121 Fla. 654. 659, 164 So. 674; Cozart v. Fuller, 139 Fla. 493, 190 So. 697.

Stated in Capital Finance Corp. v. Oliver, 116 Fla. 790, 156 So. 736.

Cited in Kearley v. Crawford, 112 Fla. 43, 55, 151 So. 293 (dis. op.).

§ 63.39 HISTORY.

§ 39, ch. 14658, 1931; CGL 4902(20) .

ANNOTATION. Prematurely setting cause down for hearing

was waived by defendants through th eir solici­tors of r ecord appearing and participating in the hearing without objection in this regard. They thereby forfeited any right to claim the benefit of this section and ·they cannot complain on ap­·peal that the chancellor proceeded with the tak­ing of t estimony and determination of the cause pursuant to a hearing in which they without ob­jection participated. Fleming v . . O ssinsky, 117 Fla. 348, 350, 158 So. 116.

Former law.-For decisions under former law, see Phillips v. Lindsay, 102 Fla. 935, 136 So. 666; Young v. Curtis, 108 Fla. 348, 146 So. 543; Mor­rill v. Burg, 80 Fla. 606, 610, 86 So. 5·66. '

Applied in Forster v. E sch, 113 Fla. 377, 388, 152 So. 444; Bay View Estates Corp. v. Souther~ land, 114 Fla. 635, 647, 154 S~. 894.

Quoted in Florida Narcissus Farm v. Carter, 143 Fla. 699, 197 So. 387; Miller v. Security­Peoples Trust Co., 144 Fla. 425, 198 So. 73.

Cited in Harrell v. Martin, 119 Fla. 275, 280, l 61 So. 389.

§ 63.40 HISTORY.

§ 40, ch. 14658, 1931; CGL 4902(21).

ANNOTATION. · The purpose of the motion is to test legal suf­

ficiency of answer. The annotation by Mr. Mc­Carthy to this section is that it was designed to have the same effect as a demurrer at la-;v. For­ster v. Esch, 113 Fla. 377, 389, 152 So. 44-1.

Time for motion.-A .m otion for a decree on pleadings was not filed within ten days after the filing of the answer wh ere the answer was filed April 4, and the motion was filed April 15th. Forster v. Esch, 113 Fla. 377, 389, 152 So. 444.

Order held . not "decree on bill and answer."­An order granting a motion "for a decree on bill and answer on the ground that the answer is in­sufficient as a defense," is not such "a decree on bill and answer" as is contemplated by this sec­tion. Finlayson v. Monticello, 144 Fla. 724, 727, 198 So. 577.

Order denying motion held proper. Miller v. Security-Peoples Trust Co., 144 Fla. 425, 426, 198 So. 73.

General rules as to hearing on bill and answer were not changed by § 63.3 7. Douglass v. Tax Equities, 144 Fla. 801, 803, 198 So. 578. See an­notation to § 63 .37.

Where hearing is had on amended bill and answer averments of an,wer must be taken as

[ 263 l

§ 63.41 F.LORIDA CHANCERY PROCEDURE LAW §. 63;41

true. Douglas. ·v. Tax Equities; 144 Fla. 791, 793, 198 So. 5.

Certiorari.-Defendants applied for an inter­locutory writ of certiorari to review · order made on motion for a decree on bill and answer. Plaintiff filed a confession of error as to the por­tion of the order directing testimony to be taken on the claim for attorney fees . This operated as a withdrawal of the features of the bill of com­plaint respecting such attorney fees, which may not be further considered, even though interlocu­tory certiorari be denied. Finlayson v. Monti­cello, 144 Fla. 724, 726, 198 So. 577.

§ 63.41 HISTORY.

§ 41, ch. 14658, 1931; CGL 4902(22).

ANNOTATION. "Amendment should be allowed when it would

further the ends of justice. See Oneida Land Co. v. Richard, 73 Fla. 884, 75 So. 412; Szabo v. Speckman, 73 Fla. 374, 74 So. 411, L. R. A. 1917D, 357." Campbell v. Wilson Co., 74 Fla. 608, 612, 77 So. 540.

"This is particularly so when the answer con­tains denials of material allegations of the bill of complaint." Oneida Land Co. v. Richard, 73 Fla. 884, 886, 75 So. 412.

' Under the former law the sufficiency of an an-swer was tested by exceptions or by motion to strike. Norris v. Eikenberry, 103 Fla. 104, 137 So. 128; Oneida Land Co. v . Richard, 73 Fla. 884, 75 So. 412; Davis Mercantile Co. v. Gillett, 82 Fla. 340, 90 So. 189; Hendricks v. Stark, 99 Fla. 277, 283, 126 So. 293. See Miller v. Ed­wards, 74 Fla, 533, 538, 77 So. 231; Campbell v. Wilson Co., 74 Fla. 608, 611, 77 So. 540; Hanley v. Bullard, 80 Fla. 578, 8·6 So. 439; Southern Fer­ro Concrete Co. v. Federal Terra Cotta Co., 79 Fla. 376, 84 So. 171; Szabo v. Speckman, 73 Fla. 374, 74 So. 411, L. R. A. 1917D, 357; Bates v. Lanier, 75 Fla. 79, 83, 77 So. 628.

And another former statute (Chapter 13660, Acts 1929) substituted a demurrer in the place of exceptions for insufficiency in the answer. Leu v. Seaboard Air Line Railroad, 107 Fla. 5·62, 563, 145 So. 8·69; N 9rris v. Eikenberry, 103 Fla. 104, 137 So. 128·. ·

For decisions relating to exceptions for insuffi­ciency, see , Peck v. Osteen, 37 Fla. 427, 20 So. 549; Indian River Steamboat Co. v. East Coast Transp. Co., 28 Fla. 387, 10 So. 480, 29 Am. St. Rep. 258; Holland v. Webster, 43 Fla. 85, 29 So. 625; Irvine v. Epstein, 45 Fla. 370, 33 So. 1003; Moore v. Clem, 45 Fla. 476, 34 So. 305; Holzen­dorf v. Terrell, 52 Fla. 525, 42 So. 584; Hunt v. Turner, 4 Fla. 654, 45 So. 509; Braxton v. Lid­don, 55 Fla. 785, 46 So. 324; Putnam v. Morgan, 57 Fla. 503, 48 So. 629; Del ega! v. Delegal, 65 Fla. 190, 61 So. 444; Pinellas Packing Co. v. Clearwater Citrus Growers' Ass'n, 67 Fla. 433, 65 So. 591; Therrell v. Gilchrist, 111 Fla. 409, 149 So. 574.

§ 63.42 HISTORY.

§ 42, ch. 14658, 1931; §§ 1, 2, ch. 20415, 1941; CGL 4939(1).

ANNOTATION. Cross reference.-As to time for appearance,

see § 63.06. The object of the statute authorizing a decree

pro confesso was to provide a just and reason­ably expeditious mode of obviating the delays and difficulties to which complainants were sub­jected by the neglect of defendants and their dis­obedience of the mandates of the court, and no construction of th'e statute should be indulged that would encourage defendants in their neg­lect of . the process of the court when duly served upon them. Prout v. Dade County Security Co., 55 Fla. 816, 829, 47 So. 12.

Order taking bill as confessed is not proper prior to appearance day.-Where service on a de­fendant in a divorce suit is made by publication and the return day fixed in the order of publica­tion is not a rule day, the defendant is not re­quired to appear prior to the rule day next suc­ceeding the return day fix.ed in such order of pub­lication. And in such case a decree pro confesso e_ntered prior to such rull! day was clearly erro­neous·. Cole v. Cole, 146 Fla. 196, 199, 200 So. 544.

Or where defense pleadings present justiciable matter.s.-A wife, when served with notice of pendency of husband's suit for divorce, filed her verified petition for an order requiring com­plainant to pay reasonable fees for her solicitor and showing that she was totally unable to pre­sent her defense without the court granting such order. The clerk entered a decree pro confesso which the chancellor refused to vacate on mo­tion. This was held error as the petition pre­sented justiciable matters to be determined. Mike­sell v. Mikesell, 137 Fta. 108, 109, 188 So. 100.

The clerk of the circuit court has no authority to enter a decree pro confesso against defendants who have a plea on file to the bill which has not been disposed of, even though such plea might n·ot have been proper to be filed under the order of the court. That is a judicial matter to be de­termined by the circuit court. Lukens Gulf Cy­press Co. v. Cochran, 65 Fla. 305, 61 So. 630.

Affidavits sworn to by defendants and filed in resistance of a preliminary application for the ap­pointment of a receiver, and neither purporting to be, nor intended as, formal answers to a bill of complaint will not be regarded as answers so as to preclude the entry of a decree pro confesso. Friedman v. Rehm, 43 Fla. 330, 31 So. 234.

And the clerk should not make such order whe~e judicial discretion is involved. McCarthy, Flonda Chancery Act, Ann. 2nd Ed. p. 111, cited in Mikesell v. Mikesell, 137 Fla. 108, 110, 188 So. 100.

Decree pro confe"sso held properly entered · in suit by heirs against administrator. Matthews v. Wilkerson, 132 Fla. 753, 182 So. 439.

Quoted in Florida Narcissus Farm v. Carter, After entry of decree · pro confesso the court ·may proceeq without further notice to, or partie­

Corp. v. Oliver, 116 ipation by, ·the defendant. Cole v. Heidt, 117 Fla. 756, 7.58, 158 So. 43~. See also, Garvin v.

[ 26,4 ]

143 Fla. 699, 197 So. 387. Stated in Capital Finance

Fla. 790, 156 So. 736.

§ 83.43 F,LORIDA CHANCERY PROCEDURE LAW §. 63.4ll

·Watkin-s, 29 Fla . . 151, 10 So. 818; Lenfesty v. Coe, 34 Fla. 363, 16 So. 277; Price v. Boden, 39 Fla. 218, 22 So. 657.

Former law.-As to decisions under · former statutes, see Pike v. Finney, 101 Fla. 45, 133 So. 5·68; Hancock v. Hancock, 128 Fla. 684, 175· So. 734. .

Quoted in part in Hirschberg v.' Marvin, 113 Fla. 81, 151 So. 539.

Stated in Capital Finance Corp. v. Oliver, 116 Fla. 790, 156 So. 736.

§ 63.43 HISTORY.

§ 43, ch. 14658, 1931; CGL 4939{2).

ANNOTATION . . This section deals with a question subject to

legislative regulation. Sydney v. Auburndale Canst. Corp., 96 Fla. 688, 119 So. 128.

Section is similar to former law.-This section is very similar to § 1446 of the Revised Statutes which was substantially the same as former equity rule 45. Friedma~ v. Rehm, 43 Fla. 330, 335, 31 So. 234. As to former equity rule 45, see Sydney v. Auburndale Canst. Corp., 96 Fla. 688, 119 So. 128; Mabson v. Christ, 96 Fla. 756, 119 So. 131.

And applies to decrees on counterclaims.-As indicated by § 63.42, this section applies to de­crees pro confesso on counterclaims. Capital Fi­nance Corp. v. Oliver, 116 Fla. 790, 792, 156 So. 736.

When the decree is actually recorded in the minutes of the court, the formality_ of entry is completed. Within twenty days from that time the court may upon motion and affidavit for .cause shown set aside a final decree. Phillips v. Howell, 81 Fla. 380, 382, 88 So. 126. ·

The setting aside of a decree pro confesso on motion or petition before the same becomes ab­solute should be distinguished from vacating or setting aside the final decree rendered upon the bill so taken as confessed, as provided for in this section although many of the rules applicable to the one are applicable to the other. Evans v. Tucker, 101 Fla. 688, 691, 135 So. 305, 85 A. L . R . 170, citing Johnson v. Johnson, 91 Fla. 275, 107 So. 342.

A final decree upon a decree pro confesso may be set aside after · twenty days from its entry, whereby it has become absolute under this sec­tion. Friedman v. Rehm, 43 Fla. 330, 335, 31 So. 234; Stribling v. Hart, 20 Fla. 235 ..

But an application therefor should be enter­tained only where strong and unavoidable cir­cumstance& exist excus,ing failure to answer at the proper time. It should never be entertained from a mere ,desire to let in a defense on the merits. Friedman v. Rehm, 43 Fla. 330, 31 So. 234.

85 A. L. R. 170; Macfarlane v. ' Dorsey, 49 Fla. 341, 38 ·sb. ·512; Gainesville v. Johnson, 59 Fla. 459, 51 So. 852; Roebuck v. Batten, 64 Fla. 424, 59 So. 942; Phillips v. Howell, 81 Fla. 380, 88 So. 126; Marks v. Baker, 20 Fla. 920. See also, Knight v. Hodge, 62 Fla. 516, 5-6 So. 942; Mann v. Jennings, 25 Fla. 730, 6 So. 771.

Neither mutual mistake of associate counsel as to the one charged with the duty of preparing and filing answers, nor the erroneous supposition that affidavits filed in resistance of an application for the appointment of a receiver would preclude the entry of a decree pro confesso, nor the fact that counsel for defendants supposed no action would be taken until the court passed upon such application for appointment of a receiver, consti· tute circumstances authorizing the setting aside! of a final decree _absolute under the statute. Friedman v. Rehm, 43 Fla. 330, 31 So. 234.

An interlocutory order denying a motion to vacate decree pro confesso and to allow an an• swer to be filed was proper where the answer was insufficient to set up any defense and tho decree pro confesso was duly entered for failuro to file required pleadings. Mandis Dairy v. Shep• ardson, 116 Fla. 557, 558, 15·6 So. 523.

Final decree absolute will not be opened up" on a showing that the defendant was illiterate and did not understand that a suit was brought against him. Gainesville v. Johnson, 59 Fla. 459, 51 So. 852.

Where after decree pro confesso is et~tered in foreclosure, the bill is, without notice to defend­ant, so amended as to greatly increase the amount claimed, the final decree entered thereon, may be set aside after the twenty days from the date of the final decree. Roebuck v. Batten, 64 Fla. 424, 59 So. 942.

A motion to vacate and set aside a final decree and decree pro confesso filed four months after the entry of the final decree should he denied where no good cause is shown for the delay and the defendant has recognized the validity of the final decree. Horner v. White, 46 Fla. 479, ?.5 So: 662.

Reversal on appeal.-A decree setting aside a final decree, which has become absolute under the statute, for the purpose of permitting a defense to be interposed, will be reversed on appeal where it is not shown that such circumstances existed as to authorize the action of the court in setting aside the decree, and the action of the court in that regard is assigned as error. Fried­man v. Rehm, 43 Fla. 330, 31 So. 234.

Applied in Ahearn v. Ahearn, 124 Fla. 524, 168 So. 807.

Cited in Cole v. Cole, 146 Fla. 196, 200, 200 So. 544; State v. Bird, 101 Fla. 1229, 133 So. 84.

§ 63.44 To authorize the granting of the application HISTORY.

it must be showp that there was deceit, surprise CG ( ) or irregularity in obtaining the decree, that the

§ 44, ch. 14658, 1931; L 49-39· 3 .

defendant acted bon<£ fide and with reasonable ANNOTATION. diligence, that he has a meritorious defense, ~nd Cited in Whittaker v. Eddy, 109 Fla. 535, 547, that strong and unavoidable -circumstances exist 147 So. 868. excusing the failure to answer at the proper § 63.45 time. Friedman v. Rehm, 43 Fla. 330, 31 So. HlSTORY. 234; Evans v. Tucker, 10i Fla. 688, 135 So. 305; § 45, ch. 14658, 1931; CGL 4921(1).

[ 265 ]

§ 63.48 FJ..,ORIDA CHANCERY PROCEDURE LAW § 63.46

ANNOTATION. The appointment of a master is jurisdictionaL

Before a master in chancery is authorized to take testimony in a case, he must be either a general master in chancery appointed under the provi­sions of § 63.54, or else he must be a special mas­ter in chancery appointed under the provisions of § 63.57. Lyle v. Hunter, 102 Fla. 972, 976, 136 So. 633.

Persons related to any of the litigants should not be appointed examiners or masters. Purvis v. Frink, 57 Fla. 519, 49 So. 1023.

Formerly the making up of the issue was a prerequisite to referring to a suit in chancery to a master for the purpose of taking testimony. Worley v. Dade County Security Co., 52 Fla. 666, 42 So. 527: Sarasota Ice, etc., Co. v. Lyle & Co., 53 Fla. 1069, 43 So. 602; Meeker v. Meeker, 74 Fla. 442, 76 So. 197.

Order of reference to take testimony should be made by the judge and not by counsel in the case. Trower v. Bernard, 37 Fla. 226, 20 So. 241.

Transcript of testimony.-Under this section, in the absence of a request, there is no duty on the part of the court to see that a transcript of testimony introduced before him at the final hear­ing is fi led in the cause. Holloway v. Sewell, 140 Fla. 464, 468, 191 So. 825.

Cited in Pershing Hotel Co. v. Stark, 123 Fla. 26, Hi5 So. 897, 910.

§ 63.46 HISTORY.

§ 46, ch. 14658, 1931; CGL 4921(2).

ANNOTATION. I. Generally.

II. Extension of Time. A. Discretion of Chancellor. B. Illustrative Cases.

I. GENERALLY. Derivation of section.-Former equity rule 71

relatin g to the time of taking testimony was in­·corporated in § 46 of the 1931 Chancery Act, from which this section was derived. Elliott Co. v. Elliott, 137 Fla. 456, 457, 188 So. 89; Giddens v. Giddens, 146 Fla. 395, 1 So. (2d) 163..

For decisions under the former equity rule, see American Securities Co. v. Goldsberry, 69 Fla. 104, 121, 67 So. 862, 1 A. L. R. 15; Zetterlund v. Stratton, 90 Fla. 435, 106 So. 79; Woodward v. Woodward, 95 Fla. 39·6, 116 So. 501; Braxton v. Liddon, 55 Fla. 785, 46 So. 324, as well as many of the cases cited in this annotation.

It is in the chancellor's discretion to set the time for taking testimony in hearings before mas­ters in chancery. This is contemplated by the statute. Rich v. Hunter, 135 Fla. 309, 318, 185 So. 141.

And the period of time allowed is wholly with­in the discretion of the chancellor. Oakland Properties Corp. v. Hogan, 96 Fla. 40, 117 So. 846.

that any evidence would have been offered by them had the full three months statutory period been allowed to run. Grant v. Amiker, 120 Fla. 356, 362, 162 So. 712.

When cause is at issue.-"It does not become inc~mbent on the court to set a time for taking testimony until the cause is at issue." Miller v. Security Peoples Trust Co., 142 Fla. 434, 443, 195 So. 191, 129 A. L. R. 500.

But in the absence of an order three months is a!low~d for the taking of testir.10ny, unless the time IS extended by an app·ropriate order. Rich v. Hunter, 135 Fla. 309, 318, 185 So. 141; Young v. Curtis, 108 Fla. 348, 350, 146 So. 543.

The three months allowed means three cal-endar months. Maxwell v. Jacksonville Loan, etc., Co., 45 Fla. 425, 34 So. 255.

"In granting 'three months and no more' for the taking of testimony after the cause is at is­sue counsel and litigants are on notice that all evidence must be in within that time unless clear and ample reason is submitted to the chancellor and an enlargement of the time secured." Elliott Co. v. Elliott, 137 Fla. 456, 458, 188 So. 89.

The time for taking testimony does not begin to run until the cause is at issue. Young v. Cur­tis, 108 Fla. 348, 349, 146 So. 543. And in de­termining when said time has expired, the first day when the cause is at issue is to be excluded from the calculation. Maxwell v. Jacksonville Loan, etc., Co., 45 Fla. 425, 34 So. 255.

However, denial of such time may not consti­tute reversible error.-In Young v. Curtis, 108 Fla. 348, 349, 146 So. 543, the court entered its order on April 21, declaring the cause to be at is­sue for taking testimony, but no attempt was made to take any testimony prior to the time the cause was set down for final hearing on June 1. On appeal no showing was made that the time elapsing between April 21, and June 1. was insufficient to enable complainants to take their testimony, nor did the record show that the·y de­sired to take any testimony or had any testimony to offer. However, complainants insisted they had the right to have the case lie undisposed of until three months from ,April 21. It was held that conceding that complainants did have three months from April 21, within which to take testi­mony, no special ordoc to the contrary having been entered, the denial of the right did not con­stitute reversible error.

Expiration of time does not affect order for temporary maintenance.-"There is no merit in the apparent contention that when the time ex­pired for the taking of testimony unde,r the stat­ute, the order of court requiring the payment of temporary maintenance pendente lite was no longer in force and effect. The order requiring such payments to be made remains in full force and effect until modified, changed or amended by order of court." Giddens v. Giddens, 146 Fla. 395, 401, 1 So. (2d) 163.

Order limiting time for taking testimony to Applied in Russell v. Russell, 129 Fla. 866, 177 sixteen days was held not an abuse of discretion So. 280; Federal Land Bank v. Brooks, 139 Fla. for which reversal should be ordered where no 506, 513, 190 So. 737. showing was made that the appellants were de- Cited in Miller v. Security-Peoples Trust Co., prived of the right to offei: further evidence, or 144 Fla. 425, 428, 198 So. 73.

[ 266]

§ 63.4l! F,LORIDA CHANCERY PROCEDURE LAW § - 63.~

II. EXTENSION OF TIME.

A. ' Discretion of Chancellor. Extension. •of time is in discretion of chancellor.

-The extension of time for the taking of testi­mony rests within the sound discretion of the chancellor. Elliott Co. v. Elliott, 137 Fla. 456, 188 So. 89; Hancock v. Hancock, 128 Fla. 684, 693, 175 So. 734; Capehart v. Farmers' Bank, etc., Co., 84 Fla. 690, 94 So. 864; Manassee v. Dutton Bank, 70 Fla. 427, 70 So. 363; Tuten v. Gazan, 18 Fla. 751; Long v. Anderson, 48 Fla. 279. 37 So. 216; Morgan v. Howell 74 Fla. 334, 7-6 So. 869; Parramore v. Parramore, 61 Fla. 701, 55 So. 795; Abney v. Hurner, 97 Fla. 240,. 120 So. 32·5, 121 So. 883.

Whether before or after expiration of statu­tory period.-Under this section an order en­larging the time for taking testimony may be made within the sound judicial discretion of the chancellor either before or after the statutory period has expired. Giddens v. Giddens, 146 Fla. 395, 401, 1 So. (2d) 163; Demos v. Walker, 99 Fla. 302, 126 So. 305; Robins v. Jones, 101 Fla. 1086, 132 So. 840.

And ordinarily his discretion will not be dis­turbed. His ruling, however, is reo; iewable by

' the supreme court and where it is clearly made to appear that he has committed an abu~e of dis­cretion, such ruling will be corrected. Elliott Co. v. Elliott, 137 Fla. 456, 188 So. 89; Parra­more v. Parramore, 61 Fla. 701, 55 So. 795; Long v. Anderson, 48 Fla. 279, 37 So. 216; Morgan v. Howell, 74 Fla. 334, 76 So. 8•69.

ing of disqualification or positive hindrance to act, or of excuse in indulgence or assent of the other side. Hancock v. Hancock, 128 Fla. 684, 693, 175 So. 734; Converse v. Converse 81 Fla. 671, 88 So. 609; Magbee v. Kennedy, 26 Fla. 158, 7 So. 529; Lykes v. Beauchamp, 49 Fla. 333, 38 So. 603; Giddens v. Giddens, 146 Fla. 395, 400, 1 So. (2d) 163.

When both parties are guilty of laches and looseness as to the time and manner of taking testimony, the court will not be reversed for per­mitting it to stand, no substantial injury appear­ing. Rice v. Cummings, 51 Fla. 535, 40 So. 8·89.

"Where testimony is taken before the chan­cellor, the statute contemplates that when all tes­timony has been taken before three months' time has elapsed, the chancellor has discretionary power to end the hearing and enter final decree; but this discretionary -power does not give him the right to end a hearing and enter final decree, while one of the parties has pertinent evidence, possessing probative value, to be introduced. without first giving that party a reasonable time in which to introduce his evidence." Rich v. Hunter, 135 Fla. 309, 318, 185 So. 141.

Orders extending time without good cause and without notice to opposing counsel, upon oral mo­tion, are wholly unwarranted. Davant v. Brooks­ville, 130 Fla. 229, 230, 177 So. 544.

B. Illustrative Cases. "In a case in which the evidence was heard by

the chancellor, and less than three months' time had elapsed, and where the record affirmatively

"The chancellor exercises a discretion which shows that there was additional testimony to be will not be di~turbed by the appellate court, ex- taken on material points, possessing probative cept in a clear case of mistake or hardship, or un- value, the chancellor, in refusing to allow inter­less an abuse of discretion is plainly made to ap- rogatories to be propounded or answered on pear." Demos v. Walker, 99 Fla. 302, 126 So. 305, these ·material points, and in refusing to allow ad-306, quoted in Robins v. Jones, 101 · Fla. 1086, ditional reasonable time in which to admit such 1087, 132 So. 840. material testimony, did, under the circumstances,

The provision as to extension of time should be commit error." Rich v. Hunter, 135 Fla. 309, construed to require dispatch and promptness in 319, 185 So. 141. the taking of testimony. Elliott Co. v. Elliott, Where"'defendant is prevented from taking any 137 Fla. 456, 458, 188 So. 89. testimony within the time extended by reason of

And there must be good cause shown for non- absence of master in chancery, who was ap­compliance with the statute, whether an applica- pointed to take the testimony, it is an abuse of tion for the extension of time to take testimony judicial discretion for tbe chancellor to refuse a is made before or after the expiration of the stat- further extension of the time for taking testi­utory period. Giddens v. Giddens, 146 Fla. 395, mony. Long v. Anderson, 48 Fla. 279, 37 So. 401, 1 So. (2d) 163. See. Tuten v. Gazan, 18 Fla. 21·6. 751. Time properly extended.-In a wife's suit for

Any motion to enlarge the time for taking tes- separate maintenance and suit money it appeared timony must show good and unavoidable reason that the defendant, regardless of the orders of the for not taking the testimony within the time court had failed to pay plaintiff the sums which fixed by the statute. Otherwi5e it will serve no the court had adjudged he should pay. Under useful purpose. Elliott Co. v. Elliott, 137 Fla. this state of facts the court did not abuse its dis-45'6, 458, 188 So. 89. cretion in extending the time for the taking of

The refusal of the chancellor to order a cause testimony on an application filed by the wife a to stand over to supply proof of the existence few months after the expiration of the statutory and execution of deeds will not be reversed when time. Giddens v. Giddens, 146 Fla. 395, 399, 1 no excuse is offered for the failure to make such So. (2d) 163. proof within the time allowed for such purpose. Enlargement of time held improperly granted Robbins v. Hanbury, 37 Fla. 468, 19 So. 886. wh~re motion filed three months after expiration

Where there has been laches.-Where there of time for taking testiri1ony was without merit. has been failu r& to take testimony· within the three Elliott Co. v. Elliott, 137 Fla. 456, 458, 188 So. months allowed, and laches in applying for en- 89, cited in Giddens v. Giddens, 146 Fla. 395, 400, largement of time to take it, the enlargement 1 So. (2d) 163. should not be granted except upon strong show- Granting an extension of time to take testi-

[ 267]

§ '83.47 FLORIDA CHANCERY PROCEDURE LAW § 83.49

mony three and ' one-half years after the last ex~ tension had expired, was held error where the record did not contain any excuse for the long delay. Hancock v. Hancock, 128 Fla. 684, 694, 175 So. 734.

Refusal to extend time held proper on applica­tion made six weeks after cause had · been prop­erly set down for hearing. Mayfield v. Wer­nicke Chemical Co., 65 Fla. 1i3, 61 So. 191, 'Ann. Cas. 1917A, 1193.

Refusal of enlargement of time two months after expirati'on of time allowed· held proper. Magbee v. Kennedy, 26 Fla. 158, 7 So. 529.

§ 63.47 HISTORY.

§ 47, ch. 146~8, 1931; CGL 4921(3).

ANNOTATION. The words "opposite party of record" · in the

first paragraph of this section mean those who are plaintiff or plaintiffs where a defendant is given the notice, and vice versa; and it does not include a co-plaintiff or a co-defendant. Putnam Lbr. Co. v. Berry, 146 Fla. 595, 613, 2 So. (2d) 133.

Applied in Reese v. Levin, 124 Fla. 96, 104, 168 So. 851; Bursiel v. Bursiel, 124 Fla; 187, 19·3, 16S So. 3; Russell v. Russell, 129 Fla. 8·66, 870, 177 So. 280.

§ 63.48 HISTORY.

§ 48, ch. 14658, 1931; CGL 4921(4).

ANNOTATION. The chancellor may require any defendant to

answer any pertinent interrogatories filed in ac­cordance with the provisions of this section. Beas­ley v. Burnett, 140 Fla. 231, 241, 191 So. 459.

Denying motion requiring answers to interrog­atories held error. Id.

And may allow additional interrogatories.-Un­der paragraph (1) of this section the allowance of additional interrogatories is within the sound discretion of the chancellor. And althOugh it is not his province to subvert the rules to rectify mistakes of counsel, where there is just cause in­terrogatories are generally liberally allowed. Rich v. Hunter, 147 Fla. 724, 731, 3 So. (2d) 393.

The allowance of a motion under paragraph (5) of this section is within the sound discretion. of the chancellor. Rich v. Hunter, 147 Fla. 724, 731, 3 So. (2d) 393.

Answers as evidence.-See Thomas v. Burke, 146 Fla. 5, 200 So. 69; Rich v. Hunter, 147 Fla. 724, 730, 3 So. (2d) 393.

In an alleged wife's suit for separate mainte­nance the alleged husband filed an answer deny­ing the marriage relationship. Pending the suit plaintiff died and defendant, alleging that he was the surviving husband, procured letters of admin­istration. On the trial of a petition for revoca­tion of the letters of ,administration it was held that the said answer was ·admissible as proof against the alleged husband. In re Price's Es­tate, 12·9 Fla. 467, 176 So. 492.

Cited in State v. Smith, 104 Fla. 91, 139 So. 794; Whittaker v. Eddy 109 Fla. 5ii5, 547, 147 So. 868; Dennis v. lvey, 134 Fla. 181, 183, 183 So. 624.

§ 63.49 HISTORY.

§ 49, ch. 14658, 1931; CGL .4921(5).

ANNOTATION. I. Generally.

II. Motion and Rulings Thereon. III. Refusal to Produce.

I. GENERALLY. This section provides a substituted method for

conveniently obtaining a discovery through pro­duction of documents, papers, etc., that could formerly only be realized through a formal prayer for discovery. Therrell v. Howland, 108 Fla. 299, 305, 146 So. 203.

But it does not provide a means to secure in-formation on which to predicate a cause of action. It is limited to securing evidence to prove the is­sues made. Hollywood Beach Hotel, etc., Club v. Gilliland, 140 Fla. 24, 29, 191 So. 30.

Its sole purpose is to procure evidence perti­nent to the issues. It is in no sense designed to afford a litigant an avenue to pry into his adver­sary's business, or go on. a fishing expedition to uncover business methods, confidential relations, or other facts pertaining to the business. Holly­wood Beach Hotel, etc., Club v. Gilliland, 140 Fla. 24, 28, 191 So. 30; Therrell v. Howland, 108 Fla. 299, 307, 146 So. 203.

Order to produce books and papers under this section held not in furtherance of a "fishing" ex­pedition. Commercial Bank v. Atlanta, etc., Ry. Co.,· 120 Fla. 167, 162 So. 512.

The evidence may be required for use at the trial. ·Hollywood Beach Hotel, etc:, Club v. Gilli­land, 140 Fla. 24, 29, 191 So. 30.

Or for inspection before the trial.-This sec­tion entitles any party to a cause the privilege of examining the "books, records and papers" of the opposite party containing or believed to con­tain evidence pertinent to the cause of the mov­ant and if found to be so, it may be used at the trial. Hollywood Beach Hotel, etc., Club v. Gill­iland, 140 Fla. 24, 28, 191 So. 30; Commercial Bank v. Atlanta, etc., Ry. Co., 120 Fla. 167, 173, 162 So. 512.

"It was the evident purpose of the legislature to provide the means by which a litigant could acquire the information wrongfully withheld from him by his adversary." Commercial Bank v. At­lanta, etc., Ry. Co., ·120 Fla. 167, 173, 162 So. 512.

Order requiring the production of records for inspection of counsel held authorized by this sec­tion. Miakka Estates v. B. L. E. Realty Corp., 132 Fla. 307, 318, 181 So. 423.

And production may be before chancellor or master.- Undoubtedly this section is brdad enough to enable the chancellor, on motion, in any pending cause, to order any other party or parties to produce either before himself or be­fore a master, books, records and papers con­taining, or believed to contain, evidence perti­nent to the cause of action of the movant, which are in the possession or control of the party or parties· named in the motion and order. Ther­rell v. Howland, 108 Fla. 299,. 303, 14-6 So. 203; Commercial Bank v. Atlanta, etc., Ry. Co.; 120 Fla. 167;•172, 162 So. ·· 512 . .

[ 268]

§ 63.49 F.LORIDA CEANC.ERX" :PROCEDURE .LAW § 63.49

. Applied, as to production of more books, .etc., than pleadings seemed to require, in Gables Racr ing Ass'n v. Persky, 116 Fla. 77, 85, 156 So. 392.

Cited in State v. Smith, 104 Fla. 91, 139 So. 794.

II. MOTION AND RULINGS THEREON. The chancellor's power under this section can

properly be exercised only on motion after rea­sonable notice. The requirement of a motion, with notice to the adverse party to be affected by the order applied for, implies that facts exist which may be set out in a written motion filed by movant for the purpose of showing that the books, records and papers sought to be required to be produced, either contain evidence pertinent to the cause of action or defense of the movant, or that movant has reasonable grounds to "be­lieve" that they contain such evidence. Therrell v. Howland, 108 Fla. 299, 304, 146 So. 203 .

But the requirement may be waived.-Without previous motion, and reasonable notice, an order for the production of books, records and papers is unauthorized, unless the requirement is affirm­atively waived by their production, without ob· jection. Therrell v. Howland, 108 Fla. 299, 304, 146 So. 203.

The movant should specify with particularity what he intends to prove and the books, records and papers from which the evidence he is in need of may be secured, and only such books, records and papers as reveal the facts specified to be proven should be produced. Where they are in different places or where they are voluminous, it becomes doubly important that the motion be definite and certatn as to what records be pro­duced. Hollywood Beach Hotel, etc., Club v. Gilliland, 140 Fla. 24, 29, 191 So. 30. • It should appear that they are reasonably ex­pected to contain relevant and material matter, and unless so shown, production of the books, records and papers should not be required. Hollywood Beach Hotel, etc., Club v. Gilliland, 140 Fla. 24, 29, 191 So. 30.

power to determine the sufficiency of the motion and to say what books, records and papers sho\lld be brought in and the terms under which they should be produced. Hollywood Beach Hotel, etc. Club ..;. Gilliland, 140 Fla. 24, 28, 191 So. 30.

To be determined by the circumstances.-"It is the duty of the judge before whom such a motion is made to award the movant considera­tion with respect to obtaining evidence that the rule contemplates but he is under an equal obli­gaton to the party against whom the motion is di­rected to protect his business from search for any other purpose. The circumstances of the particu­lar case will determine the nature and .character of his order." Hollywood Beach Hotel, etc., Club v. Gilliland, 140 Fla. 24, 28, 191 So. 30.

And is a judicial function.-The determination of the relevancy, materiality and applicability of books and records, and the necessity for their compulsory production, is a judicial function, to be exercised by the chancellor in the manner provided by this section, and then only upon the express or implied conditions imposed by the section and the general precepts governing dis­covery. Therrell v. Howland, 108 Fla. 299, 305, 146 So. 203.

Premature motion.-Where plaintiff in action brought creditor's suit against defendant, motion for the production of books, papers and records in creditor's suit was held premature as no is­sue had matured therein and no judgment had been secured in the action. Hollywood Beach Hotel, etc., Club v. Gilliland, 140 Fla. 24, 29, 191 So. 30.

Motion properly denied.-In a suit to rescind a deed the court denied plaintiffs' motion to re­quire defendants to produce . certain receipts and cancelled checks which they had admitted were in their possession, which would show the pay­ments made for the purchase of the property in­volved under the deed sought to be rescinded. It was held that the denial was not an abuse of discretion. Rich v. Hunter, 147 Fla. 724, 731, 3 So. (2d) 393.

The trial judge may prescribe different terms and conditions for the production of books, pa­pers an~ records when they are to be inspected before the trial frbm that when they are to be used at the trial. Hollywood Beach Hotel, etc., Club v. Gilliland, 140 Fla. 24, 29, 191 So. 30.

III. REFUSAL TO PRODUCE.

"The pertinent inquiry is whether or not there is any real necessity for the production of the books, documents and papers, and if so, whether or not their production will be violative of any principle that forbids inquiry into matters that are not subject to compulsory discovery from the party dilled c;m to produce, or which are privi­leged therefrom." Therrell v. Howland, 108 Fla. 299, 307, 146 So. 203.

The respondent has a right. to contest the One cannot refuse to produce the particular granting of the motion, and to adduce facts in books and papers ordered for inspection under opposition to granting it, which will show either, this section upon the ground that thereby he may that the order sought is not such as the statute be required to produce incriminating evidence authorizes, or that the production of the books, against himself. Neither is it tenable to say that papers or documents sought is not such as the the defendant niay not be required to produce statute contemplates because it would violate one them because they are privileged matters and of the established equitable principles upon which come within the scope of privileged communica­discovery was habitually refused under the prac- tion. Commercial Bank v. Atlanta, etc., Ry. Co., tice as it existed prior to the statute. Therrell v. 120 Fla. 1·67, 175, 162 So. 512. Howland, 108 Fla. 299, 304, 146 So. 203. Although out of state.-The fact that the books,

And its allowance or denial is within the sound records and papers ordered produced are in an­discretion of the chancellor. Rich v. Hunter, 147 other state is not material. Hollywood Beach Fla. 724, 731, 3 So. (2d) 393. Hotel, etc., Club v. Gilliland, 140 Fla. 24. 29, l!H

The latter part of the section clothes the judge So. 30, citing LeMire v. Galloway, 130 Fla. 101, before whom the application is made with ample 177 So. 2.83.

[ 269 1

§ 63.50 FLORIDA CHANCERY PROCEDURE LAW § 83.8t

§ 63.50 HISTORY.

§ 50, ch. 14658, 1931; CGL 4921(6).

§ 63.51 HISTORY.

§ 51, ch. 14658, 1931; CGL 4921(7).

§ 63.52 HISTORY.

§ 52, ch. 14658, 1931; CGL 4921(8).

§ 63.53 HISTORY.

§ 53, ch. 14~5S, 1931 ; CGL 4921(9).

§ 63.54 HISTORY.

§ 54, ch. 14658, 1931; CGL 4924(1).

ANNOTATION. See annotation to § 63.45. As to conflicting

provision as to recordation of appointment, see § 62.06.

Cited in Quee v. Breed, 122 Fla. 316, 165 So. 56; Lyle v. Hunter, 102 Fla. 972, 976, 136 So. 633; Markey v. State, 47 Fla. 38, 63, 37 So. 53 (dis. op.).

§ 63.55 HISTORY.

§ 55, .ch. 14658, 1931; CGL 4924(2).

ANNOTATION. Cited in Markey v. State, 47 Fla. 38, 63, 37 So.

53 (dis. op.).

§ 63.56 HISTORY.

§ 56, ch. 14658, 1931; CGL 4924(3).

ANNOTATION. Cited in Markey v. State, 47 Fla. 38, 63, 37 So.

53 (dis. op.).

§ 63.57 HISTORY.

§ 57, ch. 14658, 1931; CGL 4924(4).

ANNOTATION.

607; Brophy v. Ward, 73 Fla. 599, 74 So. 701; Bal­lard v. Lippman, 32 Fla. 481, 14 So. 154. ·

Cited in Markey v. State, 47 Fla. 38, 63, 37 So. 53 (dis. op.).

§ 63.60 HISTORY.

§ 60, ch. 1465S, 1931; CGL 4924(7).

ANNOTATION. Powers are limited to matters contained in ref.

erence.-Powers of masters in chancery, general or special, under this section, are limited to such matters as are "contained in the reference." Ther­rell v. Howland, 108 Fla. 299, 305, 146 So. 203.

And this applies to production of documents.­This section is broad enough to empower a mas­ter in chancery to require the production of all books, papers, writings, vouchers and other docu­ments applicable to any "matters contained in the reference." The master has the general right to tentatively order such production when re­quested by a party to do so, subject to the right of the affected party to object to what is required. And rights in such matters may be waived by failure to object. Therrell v. Howland, 108 Fla. 299, 306, 146 So. 203.

A mere general reference to a master to take testimony and make findings, does not confer upon the master the unrestricted power to do that which, under § 63.49, can only be done by the chancellor himself, after reasonable notice, motion and hearing, unless the parties affected by the master's orders waive the benefit of said sec­tion by complying without objection, with a re­quired production of books, papers and docu­ments, when ordered by a master during the course of a hearing. Id.

Cited in Markey v. State, 47 Fla. 38, 63, 37 So. 53 (dis. op.). ·

§ 63.61 HISTORY.

§ 61, ch. 14658, 1931; CGL 4924(8).

ANNOTATION. Cited in Markey v. State, 47 Fla. 38, 63, 37 So.

53 (dis. op.). See annotation under § 63.45. The order appointing a special master in chan- § 63.62

eery under this section need not be recorded in HISTORY. . the chancery order book. Quee v. Breed, 122 § 62 • ch. 14658, 1931; CGL 4924(9). Fla. 316, 317, 165 So. 56. ANNOTATION.

Cited in Lyle v. Hunter , 102 Fla. 972, 136 So. Cited in Markey v. State, 47 Fla. 38, 63, 37 So. 633; Markey v. State, 47 Fla. 38, 63, 37 So. 53 53 (dis. op.). .(dis. op.).

HISTORY. § 63.63

§ 63.58 HISTORY. § 63, ch. 14658, 1931; CGL 4924(10).

§ 58, ch. 14658, 1931; CGL 4924(5). ANNOTATION. ANNOTATION. Cited in Markey v. State, 47 Fla. 38, 63, 37 So. · Cited in Markey v. State, 47 Fla. 38, 63, 37 So. 53 (dis. op.). 53 (dis. op.). § 63.64

§ 63.59 HISTORY.

HISTORY. § 64, ch. 14658, 1931; CGL 4924(11).

§ !i_9, ch. 14658, 1931; CGL 4924(6). ANNOTATIONS. ANNOTATION. Cited in Markey v. State, 47 Fla. 38, 63, 37 So.

It is the right of all parties in interest, in a 53 (dis. op.). cause not under default, upon a reference to a § 63.65 master, to have notice of proceedings in the mas. HISTORY. ter's office. Mote v. Morton, 52 Fla. 548, 41 So. § 65, ch. 14658, 1931; CGL 4924(12).

[ 270 ]

§ 63.88 F.LORIDA CHANCERY PROCEDURE LAW § 63.70

ANNOTATION. For decisions under former equity rules, see

Grimesley v. Rosenberg, 94 Fla. 673, 678, 114 So. 553; McAdow v. Wachob, 45 Fla. 482, 485, 33 So. 702; Williams v. Dunn, 105 Fla. 327, 330, 141 So. 190; Cepero v. Hartridge, 51 Fla. 409, 41 So. 192.

Cited in Markey v. State, 47 Fla. 38, 63, 37 So. 53 (dis. op.); Williams v. Dunn, 105 Fla. 327, 330, 141 So. 190.

§ 63.66 HISTORY.

§ 66, ch. 14658, 1931; CGL 4939(4).

ANNOTATION. Cited in Richter Jewelry Co. v. Schweinert, 125

Fla. 199, 205, 169 So. 750.

§ 63.67 HISTORY.

§ 67, ch. 14658, 1931; CGL 4939(5).

ANNOTATION. "Courts of chancery have the power to enforce

their orders and decree lawfully made and en­tered." Burkhart v. Circuit Court, 146 Fla. 457, 469, 1 So. (2d) 872. · .

By citation for contempt.-The statute broad­ened the power of the courts but did not deprive them of their most powerful weapon-Citation for contempt. Orr v. Orr, 141 Fla. 112, 118, 192 So. 46-6.

A chancery court may cite a husband for con­tempt for failure to obey a final decree in an ac­tion of divorce adjudicated' prior thereto. Id.

Process against property.-When defendant has defaulted in payment of installments awarded his wife in a final decree of divorce for support of his minor children and has absented himself from the state so as to be immune from process for contempt, the court can determine the amount of such defaults under the decree and issue appro­priate process against the property of the de­fendant located in the state for the en'forcement of the decree on simple notice to defendant of its intention to do so. Thompson v. Thompson. 142 Fla. 643, 645, 195 So. 571.

This section and § 63.03 give the wife a right to · injunction, sequestration, or writ of assistance against the husband to enforce such installments if he cannot be found and has property within the jurisdiction of the court. Id.

Quoted in part in Florida Guaranteed Securi­ties v. McAllister, 47 F. (2d) 762, 7·65.

§ 63.68 HISTORY.

§ 68, ch. 14658, 1931; CGL 4939(6).

ANNOTATION. An order which corrected nunc pro tunc the

date of the entry of a final decree from January 14, 1938, to January 14, 1939 was proper. Bart­lett & Sons Co. v. Pan-American Studios, 14-1 Fla. 531, 533, 198 So. 195.

As to former chancery rule 87, similar to this section, see Gasque v. Ball, 71 Fla. 257, 263, 71 So. 329.

§ 63.69

ANNOTATION. ' Applied in Horne v. Ocala, 143 Fla. 108, 196 So. 441.

§ 63.70 HISTORY.

§ 70, ch. 14658, 1931; CGL 4956(1).

ANNOTATION. Petitions for rehearing are addressed to the

sound discretion of the chancellor and the su­preme court ~ill not interfere unless an abuse of this discretion is clearly shown. Braznell v. Braznell, 140 Fla. 192, 195, 1\tl So. 457.

They are generally analogous to motions for new trial, and available, among other things, for the correction of error apparent on the face of the record and for the purpose of introducing newly-discovered evidence. Braznell v. Braznell, 140 Fla. 192, 195, 191 So. 457.

And they must be filed within twenty days after · the recording of the decree or order on which rehearing is requested. United American Ins. Co. v. Oak, 123 Fla. 159, 172, 166 So. 547.

In Atwell v. Atwell, 111 Fla. 352, 149 So. 555, decided under former equity rule 90, the court said: "The circuit court at the expiration of thirty days after the filing and recording of the final decree lost jurisdiction of the cause and was without jurisdiction to enter the order granting the rehearing. It follows that all orders and· de­crees made subsequent to the order granting the rehearing were of no force and effect. See Mab­son v. Christ, ~-6 Fla. 756, 119 So. 131."

An order dismissing a cause with prejudice was recorded on August 26. A motion for rehearing was filed on August 29, and supplemental motion for rehearing was filed September 18. It was held that the supplemental motion was filed too late under ·this section. O'Steen v. Thomas, 146 Fla. 73, 74, 200 So. 230.

In foreclosure suit the court in the final decree held the case open for such further orders as might be necessary to be made and retained juris­diction with power to enter a defi ciency decree. The original deficiency decree was improvidently entered and motions for rehearing on that decree were timely made. It was held that those mo­tions being on file had the same effect as motions for new trial would have when pending in a law action and served to keep the case open for final disposi tion on the docket until the motion for re­hearmg was disposed of. Hence, the court had authority at the succeeding term to consider such motions and grant a rehearing. United' American Ins. Co. v. Oak, 123 Fla. 159, 170, 166 So. 547, distinguishing Mabson v. Christ, 96 Fla: 756, 119 So. 131.

A petition to amend a final decree, filed after a petition for rehearing has already . been denied, should be denied, when such petition is in effect a petition for rehearing and is not filed within the time prescribed. Morgan v. Jones, 52 Fla. 543, 42 So. 242.

Whether or not an appeal lies.-Bartlett & Sons Co. v. Pan-American Studios, -144 Fla . 531, 534, 198 So. 195, quoting McCarthy on Florida Chancery Act, Ann. 2nd Ed., p. 163.

HISTORY. § 69, ch. 14658, 193~; CGL 4939(7).

On a petition for rehearing for "newly-discov­ered evidence" such evidence must have been · dis­

[ 271 ]

§ 63.71 F.LORIDA CHANCERY PROCEDURE LAW § 63.73

covered since the decree, must. be reasonable, material, non-cumulative and notJ7auxiliary, and of such character as would warrant relief under bill of review, and the peti~ioner must have dil­igent. Braznell v. Braznell, 140 Fla. 192, 196, 191 So. 457.

Petition held properly denied for failure to show diligence and to establish with any degree of certainty that the evidence was actually dis­covered after decree. Id.

Petition to . vacate order dismissing cause. -Though this section provides that petitions for rehearing shall be . fil ed within 20 days, inter­venor's petition to vacate order dismissing cause was held proper although not fil ed until several months had elapsed, where the order of dismissal was granted on complainant's motion, without notice to or knowledge of the intervenor until shortly before the filing of his petition to vacate. Mayflower Inv. Co. v. Brill, 137 Fla. 287, 289, 188 So. 205.

As to former equity rule 90, see Gibbs v. Ew­ing, 94 Fla. 236, 245, 113 So. 730; Atwell v. At­well, 111 Fla. 352, 149 So. 555.

Bill of review.-"After the time has elapsed in which a petition for a rehearing may be filed, the party's remedy against whom the decree has been rendered or who desires a reversal or modi­fication of the decree is by bill of review or ap­peal. See Prentiss v. Paisley, 25 Fla. 927, 7 So. 56, 7 L. R. A. 640." Gasque v. Ball, 71 Fla. Z57, 265, 71 So. 329.

"A bill in the nature of a bill of review is the proper way to directly attack a final decree for equitable reasons going to its substance, such as fraud and the like. Miami Bank, etc., Co. v. Mahlstedt, 107 Fla. 282, 144 So. 659." Palm Beach Estates v. Croker, 111 Fla. 671, 697, 152 So. 416 (con. op.) .

exhibit, the record of the pleadings. Adams v. Fielding, 148 Fla. 552, 556, 4 So. (2d) 678.

Applied in Mayflower Inv. Co. v. Brill, 137 Fla. 287, 188 So. 205, setting aside judgment in May­flower Inv. Co. v. Brill, 131 Fla. 70, 178 So.· 827.

Cited in Mayflower Inv. Co. v. Brill, 132 Fla. 530, 180 So. 754; Dade County v. Snyder, 134 Fla. 756, 184 So. 489.

HISTORY. § 63.71

§ 71, ch. 14658, 1931; CGL 4956(2).

ANNOTATION. A petition for rehearing duly presented to the

chancellor operates to suspend the decree. Dade County v. Snyder, 134 Fla. 756, 758, 184 So. 489; Reeves v. Armstrong, 75 Fla. 384, 78 So. 338; Shayne v. Pike, 131 Fla. 71, 178 So. !}03; United American Ins. Co. v. Oak, 123 Fla. 159, 166 So. 547; O'Steen v. Thomas, 146 Fla. 73, 75, 200 So. 230.

Applied in O'Steen v. Thomas, 146 Fla. 73, 200 So. 230.

§ 63.72 HISTORY. .

§ 72, ch. 14658, 1931; CGL 4939(8).

ANNOTATION. Applied in Tyler v. Thomas, 114 Fla. 368, 153

So. 848.

HISTORY. § 63.73

§ 73, ch. 14658, 1931; CGL 4967(1).

ANNOTATION. Cross reference.-As to injunctions generally,

see notes to Chapter 64 and annotations thereto. Derivation of section.-This section was derived

from § 73 of the 1931 Chancery Practice Act which was a statutory substitute for former

"A supplemental bill in the nature of a bill of equity rule 46. Leesburg Motor Co. v. Libal, 113 review (now permissible in the form of a peti- Fla. 742, 152 So. Hi; Dixie Music Co. v. Pike, 135 tion under the 1931 Chancery Act) is the appro- Fla. 671, 680, 185 So. 441. As to former equity priate method of accomplishing in equity that rule, see Thursby v. Stewart, 103 Fla. 990, 1003, which at law can . be duly accomplished by a writ 138 So. 742, and most of the other cases cited in of error coram nobis. In equity such a proceed- this annotation. · ing as is here invoked is the proper method of Generally an application for injunction must be attacking for purpose of correction, a decree in upon notice to the opposing party. Swepson v. equity which, it is alleged, was rendered on ac- Call, 13 Fla. 337. count of some error in fact which, if it had been But a restraining order may be granted with­known to the chancellor, would have prevented out notice where the proper showing is made the entry of the decree attacked." Brown v. which under the law dispenses with notice. Drew Oehler, 114 Fla. 57, 58, 152 So. 862. Lbr. Co. v. Union Inv. Co., 66 Fla. 382, 63 So.

' "Like a writ of error coram nobis, a supple- 836. See Swepson v. Call, 13 Fla. 337; Builders mental bill in th e nature of a bill of review, may Supply Co. v. Acton, 56 Fla. 756, 758, 47 So. 'be employed to invoke the jurisdiction of a court 822, citing Hall v. Horne, 52 Fla. 510, 42 So. 383; of chancery to recall one of its own adjudica- Simms v. Patterson, 53 Fla. 984, 43 So. 421; tions made while some fact existed which, if be- Weeks v. Turner Lbr. Co., 53 Fla. 793, 44 So. fore the court, would have prevented the rendi- 173; Baker v. McKinney, 54 Fla. 495, 44 So. 944; tion of the final decree, and which, without any Shaw v. Palmer, 54 Fla. 490, 44 So. 953. fault or negligence of the party presenting it, It was proper to grant a temporary restraining was not earlier presented to the chancellor. It order without notice where it appeared that de­cannot, however, after the decree to which it is fendant might leave the state with all of his prop­addressed has been affirmed by the appellate erty if noti'ce should be given. Dixie Music Co. court, be entertained without permission duly ap- v. Pike, 135 Fla. 671, 185 So. 441. plied for and given by the appellate court which By bill or affidavit.-Under this section where affirmed the decree." Id. a bill of complaint verified under oath, or where

Bill of review held sufficient in form although affidavit in support of bill of complaint, shows it did not recite verbatip1, or include within it by that the injury apprehended will be done if an

[, 272]

§ 63.74 F.LORIDA CHANCERY PROCEDURE LAW § 63.74

immediate remedy by way of injunction is not afforded, the circuit judge may grant instanter an order restraining the party complained of un­til the hearing or the further order of the court. North Miami v. Travis Co., 118 Fla. 87\J, 884, 160 So. 360.

To justify the granting of an injunction with­out notice the allegations of the sworn bill or ac­companying affidavit must state facts showing how and why the giving of notice will accelerate or precipitate the injury complained of from which the court cap determine for itself whether the giving of notice will, or is likely to, so result, and such facts must make it manifest to the court that the giving notice of the application will, or is likely to, have such result. Godwin v. Phifer, 51 Fla. 441, 452, 41 So. 597, 600; Thursby v. Stew­art, 103 Fla. 990, 138 So. 742; Dixie Music Co. v. Pike, 135 Fla. 671, 680, 185 So. 441, citing B. L. E. Realty Corp. v. Mary Williams Co., 101 Fla. 254, 134 So. 47; Kilgore Groves v. Mayo, 136 Fla. 615, 619, 187 So. 256.

The statements in the affidavit must be direct and positive. Thursby v. Stewart, 103 Fla. 990, 138 So. 742. And averments cannot be consid­ered where predicated solely on belief of affiant. Dixie Music Co. v. Pike, 135 Fla. 671, 685, 185 So. 441. ·

If all of the allegations of the bill relating to the necessity of proceeding without notice, when taken together, mani-festly make it appear to the judge that the apprehended acts will be com­

cial discretion of the circuit judge to grant or deny an application for restraining order when 50

made and when the circuit judge has exercised such discretion a reversal of his ruling can only be had upon the showing of abuse of discretion. North Miami v. Travis Co., 118 Fla. 879, 884, 160 So. 360.

Illustrative cases.-Restraining order without notice held in contravention of this section. Ab­rogast Land Co. v. Philcox, 122 Fla. 539, 540, 157 So. 891.

A temporary injunction held properly dis­solved because of absence of a proper affidavit and the failure to give notice or account for not doing so. Kilgore Groves v. Mayo, 136 Fla. 615, 619, 187 So. 256.

Where the chancellor failed to require an in­demnity bond of plaintiff before entering the tem­porary restraining order which was properly granted, the supreme court affirmed the order but directed that the lower court require such bond before the plaintiff should be allowed to proceed further in the cause. Dixie Music Co. v. Pike, 135 Fla. 671, 687, 185 So. 441.

Applied in Leesburg Motor Co. v. Libal, 113 Fla. 742, 152 So. 16.

Quoted in Secrest v. R. I. W. Waterproofing, etc., Co., 127 Fla. 597, 173 So. 436 .

. Cited in Hopkins v. Walters, 126 Fla. 426, 171 So. 229; Bochterle v. Florida Milk Co., 132 Fla. 827, 182 So. 215.

mitted, precipitating the injury sought to be HISTORY. avoided, the form of the allegation will not be fatal to the ·cause, although they could have been

§ 63.74

§ 74, ch. 14658, 1931; CGL 4979(1).

more positive and definite. Id. ANNOTATION. "An affidavit to or an allegation in the bill as- Derivation of section.-This section was de-

serting simply the legal conclusion that, 'notice rived from § 74 of the 1931 Chancery Practice to the defendant of the application for injunction Act which was a statutory substitute for former will accelerate the injury apprehended,' is not a equity rule 47. Leesburg Motor Co. v. Libal, 113 sufficient excuse, and furnishes no reason, for Fla. 742, 152 So. 16. dispensing with notice. Richardson v. Kittle- The rules relating to gr<~;nting a temporary re­well, 45 Fla. 551, 33 So. 984." Godwin v. Phifer, straining order without notice apply, so far as 51 Fla. 441, 452, 41 So. 597, cited in Savage v. applicable, to the appointment of a receiver with­Parker, 53 Fla. 1002, 1013, 43 So. 507. out notice. The allegations in the bill as to the

necessity for proceeding without notice apply to The allegations in such bill or affidavit should both the appointment of the receiver and the is­

be more closely scanned than when notice has suance of the temporary restraining order alike. been given .and defendant has had an opportunity Dixie Music Co. v. Pike, 135 Fla. 671, 684, 185 of resisting the application. Dixie Music Co. v. So. 441. See Swepson v. Call, 13 Fla. 337. And Pike, 135 Fla. 671, 683, 185 So. 441; Builders Sup- see annotation to § 63.73. ply Co. v. Acton, 56 Fla. 756, 47 So. 822; Godwin "The appointment of a receiver without notice v. Phifer, 51 Fla. 441, 451, 41 So. 597, cited in should not be made except upon positive verified Savage v. Parker, 53 Fla. 1002, 43 So. 507. allegations of fact showing that the injury will

And the court ·should be satisfied that a clear be done if an immediate remedy is not afforded. case is made before granting a restraining order Jacksonville Ferry Co. v. Stockton, 40 Fla. 141, without notice, and also that it is a case of urgent 23 So. 557. This power should be exercised only necessity and one in which irreparable mischief in cases of the greatest emergency, demanding the will be proquced if relief is denied. Gillespie v. immediate interference of the court for the pre­Chapline, 59 Fla. 500, 52 So. 722; North Miami vention of irreparable injury; and in such case v. Travis Co., 118 Fla. 879, 884, 160 So. 360; the bill should set forth with particularity the Builders Supply Co. v. Acton, 56 Fla. 756, 47 So. facts and circumstances relied on to justify an 822. See Savage v. Parker, 53 Fla. 1002, 1013, ex parte exercise of this extraordinary power, 43 So. 507; Godwin v. Phifer, 51 Fla. 441, 451, 41 and should be sworn to or supported by the affi­So . . 597, citing Thebaut v. Canova, 11 Fla. 143, davit of complaint or other competent person. 168; Swepson v. Call, 13 Fla. 337, 359; Lewton Jones v. Rakestraw, 59 Fla. 537, 51 So, 92i. See v. Hower, 18 Fla. 872; Allen v. Hawley, 6 Fla. Martorano v. Spicola, 110 Fla. 55, 148 So. 585." 142, 63 Am. Dec. 198. Dixie Music Co. v. Pike, 135 Fla. 671, 684, 185

This statute makes it a matter within the judi- So. 441.

[ 273 l

§ 63.75 F.LORIDA CHANCERY PROCEDURE LAW § 63.76

Parties in possession of property, against whom the decree pro confesso had been taken on an unverified bill of complaint in foreclosure proceedings, and in which the appointment of a receiver was not suggested, were entitled to no­tice and to be heard on th·e question of appoint­ment of a receiver, where allegations of petition therefor were entirely insufficient to warrant the appointment without notice. There having been no prayer for receiver in the bill, the petition contemplated the issuing of process which was not contemplated by the bill. Therefore, decree pro confesso did not operate against the oppos­ing parties upon the question o£ the right to ap­pointment of receiver. Secrest v. R. I. W. Wa­terproofi_ng, etc., Co., 127 Fla. 594, 599, 173 So. 436.

Appointment of receiver without notice was proper where it appeared that defendant might leave the state with all his property if notice should be given. Dixie Music Co. v. Pike, 135 Fla. 671, 185 So. 441.

Applied in Leesburg Motor Co. v. Libal, 113 Fla. 742, 152 So. 16; Bochterle v. Florida Milk Co., 132 Fla. 827, 182 So. '21·5.

§ 63.75 . HISTORY.

§ 75, ch. 14658, 1931; CGL 4891(7).

ANNOTATION. This section operates retrospectively and ap­

plies to cases instituted before its enactment. Frierson v. Frierson, 110 Fla. 41·6, 417, 149· So. 18.

And is sole basis of chancellor's authority.­The chancellor's authority to transfer a case from the equity side of the court is derived solely from this section, and necessarily he is without author­ity to exceed the statute. All Florida Land Co. v. Thomas, Manor, Inc., 146 Fla. 564, 1 So. (2d) 567.

Only a suit erroneously brought on the equity side should be transferred, and this section does not contemplate the splitting of one law suit 'to make · two. All Florida Land Co. v. Thomas, Manor, · Inc., 146 Fla. 564, 565, 1 So. (2d) 567.

If the bill of complaint and the proofs sub­mitted thereunder show that the complainants are not entitled to relief in equity but that they may have an action at law, the court should make an order transferring the cause to the law docket for disposition under the provisions of this sec­tion. Frierson v. Frierson, 110 Fla. 416, 417, 149 So. 18.

And if anything be stated for equitable cogni-~ance the court should jealously guard its juris-

the chancellor is required by this section to order transferred to the law side of the docket. Al­sheimer v. Palmer, 119 Fla. 335, 337, 161 So. 559.

Existence of an adequate remedy at law is not a ground for dismissing a bill in equity, but mo­tion to transfer the cause to the law side of the coc<t is the remedy where the bill states a good cause of action, but does not sustain an action for equitable intervention. Winter Haven v. Sum­merlin, 114 Fla. 727, 731, 155 So. 863; Phillips Co. v. Wagner, 115 Fla. 631, 635, 155 So. 842; Brooks v. Miami Bank, etc., Co., 116 Fla. 589, 601, 156 So. 757. ,

Order of transfer retaining jurisdiction "for the purposes of administering equity as between the plaintiffs in the event of recovery of a judgment, etc.,'' was approved on certiorari with instruc­tions to the circuit court to delete the words quoted. All Florida Land Co. v. Thomas, Man­or, Inc., 146 Fla. 564, 5·65, 1 So. (2d) 567.

The running of the statute of limitations is no bar to the transfer under this section. Frierson v. Frierson, 110 Fla. 416, 418, 149 So. 18.

"Nor does the transfer amount to the institu­tion of a new suit in which the defendant may successfully plead the statute of limitations which had not run at the time of the institution of the suit in the court where it was first filed." Frier­son v. Frierson, 110 Fla. 416, 418, 149 So. '1.8. See Wilbur v. Hampton, 128 Fla. 256, 260. 174 So. 742.

Pr:oceedings after transfer.-This section con­templates that from and after the date of trans­fer of an equity cause to the law side of the court, the law side shall proceed from then on as if the original process had been sued out and served at law in the first instance, without reference to the equity attempt. Wilbur v. Hampton, 128 Fla. 256, 260, 17 4 So. 7 42 (con. op.).

After the transfer a cause of action defectively stated in the bill of complaint may be properly stated in the declaration in the law court for ap­propriate relief. And such a statement of a cause of action at law against the defendant is not dis­tinct from the cause of action against him as de­fectively stated in the bill of complaint. Wilbur v. Hampton, 128 Fla. 25·6," 257, 17 4 So. 7 42.

Applied in Orange County v. Robinson, 110 Fla. 318, 149 So. 19; Nunn v. Florida Air Condi­tioning, etc., Corp., 143 Fla. 648, 197 So. 388·; as to action against court clerk to recover excess fees, in Hillsborough County v. Dickenson, 125 Fla .. 181, 169 So. 734.

Cited in Russell v. Donaldson, 142 Fla. 394, 195 So. 198.

§ 63.76 diction for all lawful purposes. All Florida Land HISTORY. Co. v. Thomas, Manor, Inc., 146 Fla. 564, 1 So. § 76, ch. 14658, 1931; CGL 4920(1). (2d) 567.

And deny motion to transfer.-Order denying ANNOTATION. transfer held proper. Edelson v. Quinn,. 123 Fla. Provision for no notice after decree pro con-670, 167 So. 535. fesso.-In an equity suit for foreclosure of a

Suit for accounting which contained matters of mortgage no notice of taking testimony, or of the equitable cognizance was properly denied trans- filing of the master's report of evidence, or of the fer. to Jaw side of court. Goldring v. Hersko- complainant's application for a final d(:cree. was vitz, 126 Fla. 804, 172 So. 239. . necessary to be given to defendants after decrees

A suit to enforce a false and fictitious claim pro confesso had been entered against them. based upon padded accounts is not such a case as Stacey v. Christman, 111 Fla. 131, 149 So. 186.

[ 274]

INJUNCTIONS § 64.02

Failure to give notice . of application for entry of a deficiency decree to defendant or his counsel was not for vacating the decree where a decree pro confesso had been duly taken against defend­ant. Hirschberg v. Marvin, 113 Fla. 81. 151 So. 539.

Overrides circuit court rule.-U nder paragraph (2) of this section a defendant in a divorce suit, against whom a decree pro confesso has been en­tered,· is not entitled to notice of the time and place of taking the complainant's testimony, and a circuit court rule to the contrary is ineffective to confer such right. State v. Rowe, 110 Fla. 141, 144, 148 So. 588.

Cited in Baskin v. Montedonico; 115 F. (2d) 837, 839.

§ 63.77 HISTORY.

§ 79, ch. 14658, 1931; not in CG L.

ANNOTATION. Cited in Hancock v. Hancock, 128 Fla. 684,

693, 175 So. 734.

CHAPTER 64.

Injunctions.

§ 64.01 HISTORY.

stated positively, with clearness and certainty. Godwin v. Phifer, 51 Fla. 441, 41 So. 597; Hall v. Horne, 52 Fla. 510, 42 So. 383; Metcalf Co. v. Martin, 54 Fla. 531, 45 So. 463, 127 Am. St. Rep. 149.

Filing with judge.-See Fairchild v. House, 18 Fla. 770.

Stated in Allen v. Hawley, 6 Fla. 142, 162, 63 Am. Dec. 198.

§ 64.02 HISTORY.

§ 27, Nov. 7, 1828; RGS 3176; CGL 4968.

ANNOTATION. Cross reference.-As to injunction to restrain

sale of exempt property, see § 222.09. Bond must be given.-An injunction to stay

proceedings at law should not be granted without the bond and securities prescribed by this section except in cases otherwise specially provided for . Thompson v. Maxwell, 16 Fla. 773.

The intention of the legislature requiring bond after verdict in the action at law was to require at the hands of the defendant at law due security for a compliance with the result of the suit at law be­fore he could question it in a court of chancery. Having failed in the suit. at law, he must give se­curity for a compliance therewith in case he faih to secure the aid of a court of equity. Scarlett v. Hicks, 13 Fla. :J14, 322.

§ 4, Nov. 7, 182.8; RGS 3175; CGL 4967. Bond is not required where one creditor of an ANNOTATION. insolvent estate is seeking to enjoin sheriff and

Bill must specifically pray for injunction.-lt is another creditor from selling assets of the insol­irregular and improper to grant. a -temporary in- vent estate under a fieri facias on a judgment ob­junction or restraining order unless the same is tained after notice of insolvency has been filed. Id. specifically prayed for in the bill. Savage v. An injunction to restrain a forced sale of prop­Parker, 53 Fla. 1002, 43 So. 507; Gaines v. Russ, erty claimed to be exempt is not an injunction to 60 Fla. 317, 53 So. 113; Charlotte Harbor, etc., Ry. stay a proceeding at law as far as the requirement Co. v. Lancaster, 70 Fla. 200, 69 So. 720; Thomp- of a · bond by this section is concerned. Smith v. son v. Max'\1\Tell, 16 Fla. 773. Gufford, 36 Fla. 481, 18 So. 717, 51 Am. St.

And must show equity.-A court of equity can- Rep. 37. See § 222.09. not g rant relief when the complainant's own Amendment of defective bond should be al­showing in his bill demonstrates a want of equity lowed.-A bill should not be absolutely dismis~ed in his prayer, and that where there is no equity in or the injunction dissolved for deficient injunction the bill the application for an injunction should be bond for non-payment of costs or for want of no­refused. Godwin v. Phifer, 51 Fla. 441, 453, 41 tice. The. plastic and salutary power of the court So. 597, citing Wordehoff v. Evers, 18 Fla. 339; of equity is exerted to amend and correct, rather Sauls v. Freeman, 24 Fla. 209, 4· So. 525, 12 Am. than by adopting the harsh and severe rules and St. Rep. 190; McKinney v. County Com'rs, 2Ci maxims of the common law courts, to dismiss and Fla. 267, 4 So. 855; Orange City v. Thayer, 45 turn the parties out of court. Gamble v. Camp-Fla. 502, 34 So. 573. bell, 6 Fla. 347, 351.

If it is plainly apparent that the bill is without Failure to give notice.- On appeal from order equity, an injunction should not be granted in the rescinding an order granting temporary injunction first instance, but, if granted, should be dissolved which restraining order was issued without notice at the earliest opportunity by the col)rt and the as required by this section, supersedeas will be bill ordered dismissed. Builders Supply Co. v. denied. Warren v. Tampa Mtg. Investors Co., Acton, 56 Fla. 756, 47 So. 822. 108 Fla. 435, 145 So. 838.

And must state facts and not opinions. There The peremptory requisition for the giving of must be something more than the opinion of the notice provided for in this section was limited anti plaintiff to authorize the interposition of the cou.rt restricted to application "to stay proceedings· at by injunction. Thebaut v. Canova, 11 Fla. 143. law." Allen v. Hawley, 6 Fla. 142, 63 Am. Dec.

A bill for injunction must state facts clearly and 198. unequivocally and not merely conclusions of law, An affidavit that notice to defendant of an· ap­or· the opinions of the pleader in the form of such plication for . injunction will accelerate the injury conclusions of law. Drew Lbr. Co. v. Union Inv. apprehended furnishes no reason for dispensing Co., 66 Fla. 382, 63 So. 836; Gillespie v. Chapline, with notice where the injury apprehended is the 59 Fla. 500, 52 So. 722; Baker v. McKinney, 54 making of .a judicial sale by a sheriff on a day ad­Fia. 495, 44 So. 94'4. vertised. Richardson v. Kittlewell, 45 Fla. 551; 33

The title or interest of the complainant and the So. 984. facts upon which he predicates his prayer must be As to necessity of notic.e generally, see § 63. n ·.

[ 275]

§ 64.03 INJUNCTIONS § 64.00

Venue.- There is no Florida statute expressly dealing with the venue of this particular class of suits . . Pepple v . Rogers, 104 Fla. 462, 140 So. 205.

Where resi dent of one county institutes an ac­tion on a' note in county, other than that of his residence, defendant could sue to enjoin law ac­tion in county where same was pending. Id.

Cited in Brady v. Scott, 128 Fla. 582, 175 So. 724; Eppes v. Dade Developers, 126 Fla. 353, 170 So. 875.

§ 64.03 HISTORY.

§ 1, ch. 1098, 1861; RGS 3177; CG L 4969.

ANNOTATION. Bond should be required unless the exception of

this section satisfactorily appears.- A temporary injunction or restraining order should not be awarded without requiring the fi ling of an indem­uity bond, unless it is satisfactorily made to ap­pear that an exception for not requiring such bonds exists, in accordance with the requirements of this section . Dixie Music Co. v. Pike, 135 Fla. 671, 679, 185 So. 441; Savage v. Parker, 53 Fla. 1002, 43 So. 507; Merryman v. Southern Tours, J 20 Fla. 440, 162 So. 897, citing Drew Lbr. Co. v. Union lnv. Co., 66 Fla. 382, 63 So. 836; Stockton v. Harmon, 32 Fla. 312, 13 So. 833; Gillespie v. Chapline, 59 Fla. 500, 52 So. 722.

The practice of granting a restraining order and allowing time in which to file an indemnity bond is unauthorized, except in that class of cases pro­vided for in this section, where it has been made satisfactorily t6 appear that the complainant is un­able to g ive bond of indemnity or other security. Hall v. Horne, 52 Fla. 510, 42 So. 383; Gillespie v. Chapline, 59 Fla. 500, 52 So. 722; Stockton v. Harmon, 32 Fla. 312, 13 So. 833.

Sufficiency of evidence.-Where summary proc­es~ by injunction was prayed, and the bill justified it, and affidavit was made of the truth of the state· ments of the bill, and that the complainant was unable to give bond of indemnity or other secu · rity, if the statements of the bill and accompany­ing affidavit appeared by ex parte evidence (un­der Laws 1860, Ch. 1098, § 1) to be true to the chancellor or court commissioner to whom the ap­plication was made, it was not error to grant the injunction without bond. McMichael v. Grady, 34 Fla. 219, 15 So. 765. See also, Swepson v. Call, 13 Fla. 337.

Section applies to temporary injunctions to re­strain automobile trans:;>ertation companies from violating act.-This section applies to all tempo­rary restraining orders and injunctions applied for under § 25 of Chapter 14764, Acts 1931 ( § 323.24), relating to automobile transportation companie>, where the party praying for same is complainant other than the railroad commission itself, or an authorized public officer suing solely on the re­sponsibility of his official oath of office and in the protection of the public interest alone. Merryman v. Southern Tours, 120 Fla. 440, 444, 162 So. 897.

Remand by supreme court.-The power of the supreme court, where on the granting of an in­junction no bond was required, and no affidavit made of inability to give bond, to remand the case with directions to dissolve the injunction unles3 the complainant give bond, instead of remanding it unqualifiedly for a dissolution of the injunction,

will not be ·exercised where it appears, irrespective of the absence of a bond, that the injunction should not have been granted. Fuller v. Cason, 26 Fla. 476, 7 So. 870.

Applied in Thompson v. Maxwell. 16 Fla. 773; McMichael v. Grady, 34 Fla. 219, 15 So. 765.

§ 64.04 HISTORY.

§ 1, ch. 16245, 1933; CGL 4969(1).

ANNOTATION. This section applies in mandamus against city

officers to enforce payment of city bonds, city be­ing real party in interest. Treat v. State, 114 Fla. 195, 154 So. 157.

Cited in Pinellas County v. St. Petersburg, 11& Fla. 582, 156 So. 523; State v. Lakeland, 116 Fla. 713, 156 So. 699, 157 So. 926.

§ 64.05 HISTORY.

§ 4, Nov. 7, 1828; RGS 3179; CGL 4971.

ANNOTATION. An injunction may be dissolved upon motion

and due notice, either before or after answer filed. Wordehoff v. Evers, 18 Fla. 339 .

Temporary injunction may be attacked while the suit is pending. Smith v. Housing Authority, 148 Fla. 195, 3 So. (2d) 880.

For an injunction granted on bill without equity E>hould be dissolved at the earliest opportunity. Godwin v. Phifer, 51 Fla. 441, 41 So. 597.

Cited in Greater Miami Develop. Corp. v. Pender, 142 Fla. 390, 194 So. 867.

§ 64.06 HISTORY.

§ 2, ch. 1098, 1861; RGS 3178; CGL 4970.

ANNOTATION. Generally injunction will be dissolved where de­

fendant answers denying all equities of the bill.-­While it is not a matter of course to dissolve a re­straining order where all the equities of the bill are denied by sworn answer, as a general rule, this should be done. Gillespie v. Chapline, 59 Fla. 500, 52 So. 722.

Where the ·answer fully denies all the circum­stances under which the equity of the bill is founded it is the usual practice to dissolve the in­junction. Allen v. Hawley, 6 Fla. 142, 63 Am. Dec. 198.

Where all the equities of the bill are denied by the a nswer, it is not of course to dissolve the in­junction . The granting and continuing of injunc­tions rests in the discretion of the court. Carter v. Bennett, 6 Fla. 214; Linton v. Denham, 6 Fla. 533; Sullivan v. Moreno, 19 Fla. 200.

Unless the answer is controverted.- While the granting, denial or dissolving injunctions is dis­cretionary within the limitations of applicable rules of law, and while the dissolution of a re­straining order is not a matter of course when the c·quities of the bill are denied by answer, yet if the answer by appropriate denials and averments suf­ficiently meets the asserted equities upon which a restraining order was granted, the order should be dissolved upon proper proceedings duly taken, if the answer is not controverted by proper pro-

[ 276 ]

§ 64.07 INJUNCTIONS § 64.()t

cedure as provided by the statutes. Pensacola v. abuse of discretion. - Wide judicial discretion Bear, 83 Fla. 484, 492, 91 So. 360. rests in the court in the granting, denying, dissolv-

Then judge must be governed by weight and ef- ing or modifying injunctions, and where the evi­fect of evidence.- Where the defendant to a bill dence taken by the court in person is sufficient to for injunction files an answer at the hearing of the warrant the action of the court the appellate court application that is fully responsive to the bill and will not interfere where no abuse of discretion ap­that denies all the equities thereof, the general rule pears. Shaw v. Palmer, 54 Fla. 490, 44 So. 953. is that the judge in granting or withholding the The granting or refusing of a temporary in­injunction must be governed by the weight and junction is within the discretion of the court; but legal effect . of the evidence. Dade Enterprises v. if the allegations of the bill are sufficient and the Wometco Theatres, 119 Fla. 70, 75, 160 So. 209; evidence in support thereof is ample to warrant it Campbell v. White, 39 Fla. 745, 23 So. 555. and no sufficient defense is made, an order deny-

The rule in this state anterior to the legislation ing an injunction will be reversed. Seaboard Oil of 18·61, Chap., 1098 (now this section), was "that Co. v. Donovan, 99 Fla. 1296, 128 So. 821; Tay­where all the equities of the bill are denied by the lor v. Florida East Coast Ry. Co., 54 Fla. 635, 45 answer, it is not of course to dissolve the injunc- So. 574, 127 Am. St. Rep. 155, 16 L . R. A. (N. S.) tion. The granting and continuing of injunctions 307. rest in the discretion of the court to be governed Where application is made to dissolve a tempo­by the nature and circumstances of the case." Un- rary injunction upon bill, answer and affidavits der the legislation referred to either party in such filed by the respective parties, the chancellor must case has the right to introduce evidence in sup- be governed by the weight of the evidence, and port or denial of the bill and 'the accompanying a£- unless it clearly appears that the ruling upon such fidavit or answer, and the chancellor determines motion is against the weight of the evidence it the matter according to the weight of the evi- will not be reversed on appeal. Ogden v. Baile, dence. The rule stated is modified to this extent. 69 Fla. 458, 68 So. 671; Richardson v. Kittlewell, Sullivan v. Moreno, 19 Fla. 200. See also, Fuller 45 Fla. 551, 33 So. 984. v. Cason, 26 Fla. 476, 7 So. 870; Indian River Cited in Godwin v. Phifer, 51 Fla. 441, 41 So. Steamboat Co. v. East Coast Transp. Co., 28 Fla. 597. 387, 10 So. 480, 29 Am. St. Rep. 258.

On application to dissolve . a temporary injunc­tion on bill, answer and affidavits, the chancellor must be governed by the weight of the evidence. Orlando Orange Groves Co. v. Hale, 107 Fla. 304, 309, 144 So. 674; Baya v. Lake City, 44 Fla. 491, 33 So. 400; Ogden v. Baile, 69 Fla. 458, 68 So. 671; Richardson v. Kittlewell, 45 Fla. 551, 33 So. 984.

§ 64.07 HISTORY.

§ 1, ch. 3432, 1883; RGS 3180; CGL 4972.

ANNOTATION. Cited in Bevill v. Smith, 25 Fla. 209, 6 So. 62.

§ 64.08 Affidavit of complainant which only affirms in HISTORY.

general terms the truth of the statements of the § 2, ch. 3884, 1889; § 1, ch. 5682, 1907; RGS bill is not sufficient evidence ' to overcome the de- 3181 ; CGL 4973· nials in an an swer of the allegations which con- ANNOTATION. stitute the equities of the bill. Fuller v. Cason, 26 Constitutionality.- To the extent of conferring Fla. 476, 7 So. 870. jurisdiction on the court of chancery to enjoin the

Ordinarily an injunction will be dissolved where trespasses mentioned in Acts 1889, Ch. 3884 (the the bill and accompanying evidence are fully met predecessor of this section) by a mere trespasser by the answer and its accompanying evidence. without color of right or authority, the act was Shaw v. Palmer, 54 Fla. 490, 44 So. 953. constitutional and could be enforced; but to the

Court will look to only such facts of the answer extent of awarding an account for damages for as are responsive to the bill-On motion to dis- the trespasses mentioned therein and decreeing solve an injunction on bill and answer, where suf- their payment, the same was unconstitutional and ficient equities are stated in the bill, the court will could not be enforced. Wiggins v. Williams, 36 look to such facts of the answer only as are re- Fla. 637, 18 So. 859, 30 L. R. A. 754; McMillan v. sponsive to the bill; and a respondent will not be Wiley, 45 Fla. 487, 33 So. 993; Cowan v. Skinner. permitted to rely upon new matter in avoidance 52 Fla. 486, 42 So. 730. in his answer, not in response to the allegations Independent of the act of 1889 the court of upon which the equities of the bill are founded. chancery had no jurisdiction to order an account Orlando Orange Groves Co. v. Hale, 107 Fla. 304, to be taken of damages for a mere trespass on 310, 144 So. 674. See also, Yon ge v. McCormick, timbered lands, the same being cognizable at law, 6 Fla. 368, 63 Am. Dec. 214; Indian River Steam- a.nd, in so far as said act undertook to confer such boat Co.. v. East Coast Transp. Co., 28 Fla. 387. jurisdiction upon the court of chancery, it im-10 So. 480, 29 Am. St. Rep. 258. paired the right of trial by jury according to the

Where· the answer avers matters that grow out course of the common law and secured by the of land and are connected with the transactions constitution. Wiggins v. Williams, 36 Fla. 637, alleged in the bill, they may be sufficiently respon- 18 So. 859, 30 L. R. A. 754; McMillan v. Wiley, sive to make the dissolution of an injunction de- 45 Fla. 487, 33 So. 993. pend upon the weight of evidence. Ogden v. In case where equity will, independent of stat-Baile, 69 Fla. 458, 68 So. 671. ute, enjoin the destruction of or injury to grow-

On a motion to dissolve an injunction, the bur- ing trees, the court may proceed to an accounting den of proof is on the defendant. Orlando Orange and award damages for the trespass as an incident Groves Co. v. Hale, 107 Fla. 304, 310, 144 So. 674. to relief by injunction, but when the injunction is

Appellate court will not interfere in absence of granted under a statute upon grounds which [ 277 ]

§ 64.09 INJUNCTIONS § 64.11

would not be sufficient independent of the statute. the court cannot legally proceed to an accounting and award damages for the trespass, since in such case the defendant is entitled to a jury trial on the question -of damages. Cowan v. Skinner, 52 Fla. 486, 42 So. 739.

Equitable jurisdiction prior to statute.-Prior to the enactment of this section, the court of chan­cery in this state had no jurisdiction to enjoin a mere trespass upon land and the boxing and ~craping the· trees thereon for the purpose of mak­ing turpentine, or the removal of turpentine there­from, where no other element of i1,-reparable in­jury or recognized ground of equity jurisdiction, was alleged. Wiggins v. Williams, 36 Fla. 637, 18 So. 859, 30 L. R. A. 754. See also, Carney v. Hadley, 32 Fla. 344, 14 So. 4, 37 Am. St. Rep. 101, 22 L. R. A. 233; Woodford v. Alexander, 35 Fla. 333, 17 So. 658. -

Prior to the enactment of this section an in• junction to restrain trespasses on real estate could be obtained .. only · upon· a clear showing of inad­equacy of the remedy afforded· by an action at law for damages. ·Cowan v. Skinner, 52 ·Fla. 486, 49G, 42 ·So. 730. ·

Equitable jurisdiction arising independent of statute.-Where it is sought to quiet title or t o· re­move a cloud from title to real estate, which is an equity ground independent of statute, the court has authority to issue an order restraining· the cutting of timber on the land and to give such in­junctive relief. as might be shown to. be proper and necessary in the premises. Cameron v. Rog­ers, 70 Fla. 300, 70 So. 389. See also, McMillan v. Wiley, 45 Fla. 487, 33 So. 993.

In a suit in chancery seeking to enjoin the de­struction or injury of timber standing on land, not based on this section, irreparable injury must be made to appear. Hall v. Horne, 52 Fla. 510, 42 So. 383.

Without the aid of a statute courts of equity do not grant injunctions to restrain the mere trespass of taking turpentine from trees upon lands when such trespass can be compensated in damages in an action at law. Cowan v. Skinner, 52 Fla. 486, 491, 42 So. 730.

Allegations of bill insufficient to show equitable jurisdiction independent of Stiltute. Id.

In the case of equitable int~rvention independ­ent of any statute, the court may, in granting the injunction, proceed to an accounting and award damages sustained by the trespass, . as an incident to the relief by injunction. Cowan v. Skinner, 52 Fla. 486, 491, 42 So. 730. See notes under catct.­line, "Constitutionality," ante.

Damages. - See catchline, "Constitutionality", ante.

Formerly this section related only to an "owner of timbered land". Doke v. Peek, 45 Fla. 244, 34 So. 896, 110 Am. St. Rep. 70; Reddick v.. Meffert, 32 Fla. 409, 13 So. 894; Louisville, etc., R. Co. v. Gibson, 43 Fla. 315, 31 So. 230; McDonald v. Padgett, 46 Fla. 501, 35 So. 336; Hall v. Horne, 52 Fla. 510, 42 So. 383; Weeks v. Turner Lbr. Co., 53 Fla. 793, 44 So. 173; Baker v. McKinney, 54 Fla. 495, 44 So. 944.

HISTORY. § 64.09

§ 1472 RS 1892; RGS 3182; CGL 4974.

ANNOTATION. Cited in Wildwood Crate, etc., Co. v. Citizen•

Bank, 98 Fla. 186, 123 So. 699.

HISTORY. § 64.10

§ 1, ch. 5406, 1905; RGS 3183; CGL 49711.

HISTORY. § 64.11

§ 2, th. 7367, 1917; RGS 3223; CGL 5029.

ANNOTATION. I. Generally.

II. Suit by Private Citizen.

I. GENERALLY. The government can obtain an injunction re­

straining a · public nuisance, without showing any propertY right ·in itself. The duty of protecting the prop·erty· right of all its citizens is sufficient warra:nty in · issuing the injunction. Pompano Horse Club v. State, 93 Fla. 415, 441, 111 So. 801, 52 A. L. R. 51.

The remedy this section provides to suppres~ by injunction·· places where gambling is conducted may not be extended to prevent illegal acts. The rule is that .equity will not enjoin criminal viola­tions because · there is ample authority in the crim­inal courts to punish evil-doers. Lansky v. State, 145 Fla. 301, 303, 199 So. 46; Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A. L. R. - 51.

State may enjoin or criminally prosecute.­When a statute has properly declared the prem­ises where gambling or games of chance are car­ried on to be a publi"c nuisance, the state may sup­press that nuisance by a suit in equity, notwith­standing it at the same time could also resort to criminal prosecution. The state may resort to ei­ther method, or both. Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A. L. R. 51.

That· nuisance is abated by a bill in equity is not a bar to criminal prosecution for illegal acts ap­pertaining to the· nuisance. Merry-Go-Round v. State, 136 Fla. 278, 186 So. 538. See also Cole­man v. Greene, 136 Fla. 276, 186 So. 541. '

Appeal and suoersedeas as preventing criminal prosecution.-When the supreme court issued its order of supersedeas it placed in repose the in­junction procured under this section and the state may not, regardless of that order of supersedeas, prosecute the complainants for doing the verv thing which they were restrained from doing. Gulf Theatres v. State, 133 Fla. 634, 637, 182 So. 842.

The procedure authorized by this and the fol­lowing sections operates not to deprive an owner of his property in the constitutional sense but to suppress an unlawful use of that property in a manner declared by law to be a nuisance, and though such action may impair the value of the property, it is not for that reason obnoxious to constitutional guaranties. Pompano Horse Club v. State, 93 Fla. 415, 433, 111 So. 801, 52 A. L. R. 51; Nelson v. State, 84 Fla. 631, 94 So. 680.

Cited in Waits v. Orange Creek Turpentine Corp., 123 Fla. 31, 41, 166 So. 449; Shaw v. Pal­mer, 54 Fla. 490, 44 So. 953; Godwin v. Phifer, 51 Fla. 4411 41 So. 597.

And affords full opportunity for notice and art opportunity to be heard in a court of competent

[ 278]

§ 64.11 INJUNCTIONS § 64.11

jurisdiction. Pompano Horse Club v. State, 93 ets has direct connection with, and is provided Fla. 415, 431, 111 So. 801, 52 A. L; R 51. for in, the contract for the purchase of the tick-

Guarantee against double jeopardy is not vio- ets, even though the compensation is contingent lated.-The provisions in this section, authorizing upon the purchase of one or more winning ticket!. a proceeding to suppress by injunction, as a pub- Such transactions in substance and in fact via­lie nuisance, -the operation or maintenance of late the provision of § 16, ch. 14832, acts 1931, as premises where gambling or games of chance are amended. The transactions stated being unlaw­engaged in in violation of law, does not violate ful, the place where the business is done may be the constitutional guaranty that "no person shall abated and the persons who conduct or maintain be subject to be twice put in jeopardy for the the place may under the statutes be enjoined as same offense." Pompano Horse Club v. State, g3 for ·the • commission of a nuisance. Herd en v. Fla. 415, 111 So. 801, 52 A. L . R. 51. State, 136 Fla. 378, 3817, 188 So. 849.

A jury trial is not required in suits in equity Slot machines which have been duly licensed brought to abate a. public nuisance. Pompano under statute by comptroller and on which license Horse Club v. State, 93 Fla. 415, 430, 111 So. 801, tax has been paid are not subject to being abated 52 A. L. R. 51i Nelson v. State, 84 Fla. 631, 94 as nuisances in absence of fraud in procuring li-So. 680. ' .t · • cense. Frey v. State, 127 Fla. 671, 173 So. 812.

And the rendition of a decree does not qeny Applied in State ·v. Lakeland, 141 Fla. 795, ·797, equal protection nor take property for public use 193 So. 826. without . cotp.pensation.-T\le .. rendition · o(· a .. de-cree against tl1e defendant in a proceeding, pur- II. SUI~ BY PRIVATE CITiZEN. suant to this section, . to $Uppr~ss by iujunc~ion Within organic limitations, it is competent for as a public riuisance . the operation and mainte- the state by legislative 'action to designate the nance of premises where gambling or games of persons, or class of persons, who may maintain chance are engaged, in in violation of law, does suits in the name of the state to restrain and not operate to deprive the defe'ndant of property abate public nuisances, and a broad discretion as without due process of law, nor. is it a taking of to the means to be used should be accorded the private property for public use without just com- law-making power. Pompano H orse Club v. pensat.ion, nor . does it deprive the defendant in State, 93 Fla. 415, 426, 111 _So. 801, 52 A. L. R. such cases of._ the equal protection of the law. 51, citing Board of County . Com'rs v. Savage, 63 Pompano Horse Club v. State, 93 Fla. 415, 111 Fla. 337, 58' So. 835. · I So. 801, 52 A. L. R . 51. . , This section merely extends to the citizen the

Suit mul?t be brought in the county ·where the right to act in the name of the state in that class alleged nuisance is maintained. Pompano Horse of cases where under the section without such Club v. State, 93 Fla. 415, 43i, 1,11 So. 801, 52 A. provision . the citizen could not act affirmatively L. · R. 51. but would have to depend entirely upon the wil-

Order enjoining defendants frot:n maintaining lingness 'of the attorney general to use in the gambling house "elsewhere in county." An or- name of the state. National Container Corp. v. der enjoining defendants from maintaining a State, 138 Fla. 32, 46, 189 So. 4, 122 A. L. R. gambling house on or near a particularly de- 1000. scribed premises "or elsewhere in Broward The most convincing evidence that in enacting County" is not authorized. Lansky v. State, 145 this section, the legislature used the word "or," Fla. 301, 199 So. 46. in stating who may maintain the action, in its

A theatre operating a "bank night" scheme ordinary disjunctive sense is found in the plain may be enjoined from so doing as same consti- and uninvolved language of the section itself. tutes a lottery and as such is a nuisance. Lit- Pompano Horse Club v. State, 93 Fla. 415, 427, tie River Theatre Corp. v. State, 135 Fla. 854, 111 So. 801, 52 A. L. R. 51. See also, Cherry 185 So. 855. Lake Farms v. Love, 129 Fla. 469, 176 So. 486.

Maintenance of betting room.-Tl:i.e mainte- And is not unconstitutional as permitting pri-nance of a pool room or turf exchange where vate citizen to institute criminal prosecution. persons congregate for the purpose of making Merry-Go-Round v. State, 136 Fla. 278, 186 So. bets and wagers on horse races run in other 538. states or countries is a public nuisance, and abat- The citizen need not first request public offi­able as such by injunction. Pompano Horse cers to act.-A private citizen of the county may Club v. State, 93 Fla. 415, 442, 111 So. 801, 52 institute suit without first requesting the public A . L. R. 51. officers named in this section to bring suit and

Purchasing race horse tickets on commiSSIOn. without showing a refusal on their part to do so. -Where defendant does engage, at a place far Pompano Horse Club v. State, 93 Fla. 415, 111 removed from the race track, in the business of So. 801, 52 A. L . R. '5 1; Little River Theatre receiving money from others for the purchase of Corp. v. State, 135 Fla. 854, 185 So. 855; Gulf tickets which though to be purchased at the race Theatres v. State, 135 Fla. 850, i85 So. 8·62. track without charge to the customers who fur- Nor show special damages to himself.-For a nish the money, yet under the transaction con- citizen to maintain a suit in his individual capacity tract there is an agreed charge of ten per cent ·to enjoin a nuisance it is not necessary for him to for collections on winning tickets; so there is show some s'pecial interest or damage accruing recompense proximately, if not directly, received to him by reason of the continuance of such nui­by the defendant from his business customer un- sance. National Container Corp. v. State, 138 der the contract for the purchase of tickets, since Fla. 32, 47, 189 So. 4, 122 A. L. R. 1000. the compensation for collecting on winning tick- The suit is in effect one instituted in behalf of

[ 279]

§ 64.12 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.01

the public.-When authority to bring the suit is properly conferred upon a private citizen, the suit is in effect one instituted in behalf of the public, and in which the pub lic -is the real com­plainant, to the same extent as though the suit was brought by the attorney general or public p-rosecutor. Pompano Horse Club v. State, 93 Fla. 415, 427, 111 So. 801, 52 A. L. R. 51: Gulf Theatres v. State, 133 Fla. 634, 635, 182 So. 842.

Citizen may enjoin "threatened" nuisance. -Section 823.05 by implication prohibits the erec­tion or establishment of any building or place which when used for the purposes for which its building and construction is intended will tend to annoy the community or injure the health of the community. This being within the implied prohibition of that section, then this section ex­pressly authorizes the maintenance by a private citizen of suit to prevent the consummation of the nuisance. National Container Corp. v. State, 138 Fla. 32, 47, 189 So. 4, 122 A. L. R. 1000.

§ 64.12 HISTORY.

§ 2, ch. 7367, 1917; § 1, ch. 20467, 1941; RGS 3224 ; CGL 5030.

ANNOTATION. See notes to § 64.11. This and the following sections authorize the

court to proceed only upon reasonable notice, and leaves the court at liber ty to give full effect to the principle that an inju'!c:tion will not be granted to restrain a nuisance save upon clear and satisfactory evidence that one exists. The question for determination is -not whether a place kept and maintained for purposes forbid­den by statute constitutes a nuisance-that fact having been lawfully determined by the legisla­ture-but whether the place in question was so kept and maintained. If such proof is not suffi­cient, the court can refuse an injunction. Pom­pano Horse Club v. State, 93 Fla. 415, 432, 111 So. 801, 52 A. L. R. 51.

§ 64.13 HISTORY.

§ 3, ch. 7367, 1917; RGS 3225; CGL 5031.

ANNOTATION. See notes to § 64.11.

§ 64.14 HISTORY.

§ 4, ch. 73-67, l!Jl7; RGS 3226; C'GL 5032.

ANNOTATION. See notes to § 64.11.

§ 64.15 HISTORY.

§ 5, ch. 7367, 1917; RGS 3227; CGL 5033.

ANNOTATION. See notes to § 64.11.

CHAPTER 65.

Divorce, Alimony and Custody of Children.

§ 65.01 HISTORY.

§ 1, Oct. 31, 1828; RGS 3188; CGL 4980.

ANNOTATION. The power to grant divorces is a judicial power

and not a legislative one. McGowin v. Mc­Gowin, 122 Fla. 394, 397, 165 So. 274.

The legislative council had no power or author­ity, after the act of 1828, giving the courts juris­diction in cases of divorce, to take jurisdiction of and decide questions of divorce; nor was the power possessed by the legislative body either before or after said act. Ponder v. Graham, 4 Fla. 23, holding a bill, passed by the then legis­lative council of the territory of Florida, dissolv­ing the marriage contract between two persons void as in conflict with the organic law of Flor­ida and Federal Constitutions.

And such power is a statutory and not a com­mon-law power. McGowin v. McGowin, 122 Fla. 394, 396, 165 So. 274.

This section invests courts of equity with ju­risdiction in cases of divorce. McGowin v. Mc­Gowin, 122 Fla. 394, 396, 165 So. 274.

The statute law of Florida invests the court of chancery with exclusive jurisdiction over mat­ters of divorce, and to allow alimony in cases where divorce is decreed. Chaires v. Charies. 10 Fla. 308.

This and the following sections give to courts of chancery plenary jurisdiction over the entire subject of granting divorces, awarding alimony and maintenance to wives and the custody of children in such cases. Bronk v. State, 43 Fla. 461, 470, 31 So. 248, 99 Am. St. Rep. 119.

Decree pro confesso.-While divorces are to be sought by bill in equity, this section does not confine the courts to a strict adherence to the rules which obtain in dealing with a decree pro confesso in an ordinary chancery suit. The pub­lic is a silent partner to all such suits, having an interest in their ·results inasmuch as they af­fect the status of children, as well as public morals and decency, and so, in such cases a large discretion must be exercised by a circuit judge. Spencer v. Spencer, 61 Fla. 777, 55 So. 71.

Applied in Markey v. State, 47 Fla. 38, 37 So. 53.

§ 65.02 HISTORY.

§ 1, ch. 522, 1853; § 1, ch. 4726, 1899; § 1, ch. 16009, 1933; § 1, ch. 16975, 1935; RGS 3189; CGL 4981.

ANNOTATION. Editor's note.-Prior to 1852 the language of

this section was that no person should be entitled to apply for a divorce who had not been a resi­dent of this state for a period of three months. See Thompson's Digest, p. 222. An act passed in 1852, Chapter 522, provided that no divorce from the bonds of matrimony should be granted to any applicant unless it should appear that such "ap­plicant has resided in the State of Florida for the space of two years prior to the term of such application." In the Revised Statutes, 1892, § 1478, the phraseology was changed so that the provision was that " In order to obtain a divorce the complainant must have resided two years in the State of Florida before filing the bill." In 189·9, ·by Chapter 4726 (§ 3189, Revised General Statutes, 1920), this section was amended and

[ 280 l

§' 65.02 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.02

the phraseology changed so that the provision was that "In order to obtain a divorce the com­plainant must have resided two years in the State of Florida before the filing of the bill, ex­cept where the defendant has been guilty of the act of adultery in this State; then any citizen of this State may obtain divorce at any time, and the two years' residence shall not be required of

. such complainant." Krumrine v. Krumrine, 90 Fla. 368, 106 So. 131. By Chapter 16009, acts of 1933 and Chapter 16975, acts of 1935, the ex­ception as to suits on the ground of adultery was . deleted, and the period of residence was reduced to ninety days.

A majority of the cases relating to this section were decided prior to the acts of 1933 and 1935, supra. Such cases have been included in this note wh.er~ they are of value in interpreting the present section.

Reason for residence requirement.-The reason for the requirement as to residence before a di­vorce can be applied for is to prevent citizens of other states from committing a fraud upon the law by taking up a temporary residence solely for the purpose of obtaining divorces that they could not secure in the jurisdictions to which they belong. Miller v. Miller, 33 Fla. 453, 462, 15 So. 222, 24 L. R. A. 137.

Required residence is a jurisdictional prerequi­site.-Required residenc.e in this state is a juris­dictional prerequiste to the granting of divorces by the courts. Warren v. Warren, 73 Fla. 764, 777, 75 So. 35, L. R. A. 1917E, 490; Curley v. Curley, 144 Fla. 728, 731, 198 So. 584; Bowmall v. Bowmall, 127 Fla. 747, 757, 174 So. 14 (con. op.). See Krumrine v. Krumrine, 90 Fla. 3·68, 106 So. 131.

Proof of the ninety days residence requirement is jurisdictional only as to the relief of divorce when sought to be decreed at final hearing, and is not jurisdictional in the sense that it is a con­dition precedent to proceeding with the suit in the first instance. Bowmall v. Bowmall, 127 Fla. 747, 758, 174 So. 14 (con. op.).

There are at least two jurisdictional issues in suits for divorce: (1) residence of the com­plainant required by this section and (2) a suffi­cient allegation of the statutory "grounds" for divorce ; the absence of the establishment of either may be sufficient grounds to set aside a decree. Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694.

And such residence should both be alleged in bill and established by the proofs. Warren v. Warren, 73 Fla. 764, 777,. 75 So. 35, L. R. A. 1917E, 490; Curley v. Curley, 144 Fla. 728, 731, 198 So. 584; Phelan v. Phelan, 12 Fla. 449; Gred­ler v. Gredler, 36 Fla. 372, 18 So. 762; Beekman v. Beekman, 53 Fla. 858, 43 So. 923; Prall v. Pral1, 58 Fla. 496, 50 So. 867, 2·6 L. R. A. (N. S.) 577.

The prerequisite residence of the complainant in a suit for divorce is jurisdictional, and must be both a11eg'ed in the bill and established by the proofs, otherwise nur courts have no authority to grant a decree of divorce. Wade v. ·Wade, 93 Fla. 1004, 113 So. 374. Chisholm v. Chisholm, 98 Fla. 1196, 1215, 125 So. 694.

to enable a complainant to obtain a divorce. Mar­key v. State, 47 Fla. 38, 53, 37 So. 53.

Finding that plaintiff had resided in state ninety days before filing of bill held warranted. Ginsburg v. Ginsburg, 144 Fla. 456, 198 So. 92.

Admission thereof by the parties is ineffectual as a substitute for proof.-Requisite residence being jurisdictional, an admission thereof by the parties in their pleadings is ineffectual as a sub­stitute for proof. Chisholm v. Chisholm, 98 Fla. 1196, 1215, 125 So. 694; Wade v. Wade, 93 Fla. 1004, 1006, 113 So. 374 .

The requisite residence must be alleged in the bill and established by proof. This is not an in­stance in which facts going to the jurisdiction may be effectually admitted by the parties. Wade v. Wade, 93 Fla. 1004, 1007, 113 So. 374.

And general appearance of defendant cannot confer jurisdiction.-!£ court is without jurisdic­tion of the parties because of the fact that the complainant had not established his residence in Florida, but was in Florida only temporarily for the purpose of procuring a divorce, then a gen­eral appearance of the defendant cannot confer jurisdiction on the court. Taylor v. Taylor, 132 Fla. 690, 696, 182 So. 238.

As no "cause for divorce" exists until requisite residence has been completed.-No "cause for divorce" can properly be said to exist -in this state in favor of an applicant, at least none such as our courts could recognize, until he or she shall have completed the requisite residence here. Miller v. Miller, 33 Fla. 453, 461, 15 So. 222, 24 L. R. A. 137. .

"Resided" means had "legal residence."-The re­quirement that the complainant in a divorce suit must have "resided" for the statutory period in the state before bringing suit, refers to a "legal residence" of the complainant, that is to say, the place of domicile or permanent abode of such person, as distinguished from a temporary resi­dence. Wade v. Wade, 93 Fla. 1004, 1007, 113 So. 374; Chisholm v. Chisholm, 98 Fla. 1196, 1213, 125 So. 694; Bowma11 v. Bowmal1, 127 Fla. 747, 757, 174 So. 14 (con. op.) .

The word "residence" has a variety of signifi­cations depending upon its various applications,

. but used in this connection it is synonymous with "domicile" or "permanent abode." Wade v. Wade, 93 Fla. 1004, 1007, 113 So. 374.

The term "residence,'' when used in a statute controlling suits or actions for divorce, means a permanent place of abode as distinguished from a temporary residence. Curley v. Cur.-!ey, 144 Fla. 728, 731, 198 So. 584.

This section contemplates the establishment of residence in Florida and not merely sojourning for a period of ninety days. Taylor v. Taylor, 132 Fla. 690, 69ti, 182 So. 238.

The terms "residence" and "residing," used in relation to divorce· cases, mean "legal residence." Chisholm v. Chisholm, 98 Fla. 1196, 1214, 125 So. 694.

There is a recognized distinction between a residence for commercial purposes and such a residence as is necessary to support the jurisdic­tion of a court to adjudicate upon the duties and bbligations growing out of the marital status.

Required residence must be alleged and proven Wade v. Wade, 93 Fla. 1004, 1008, 113 So. 374; [ 281]

§ 65.02 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.03

Bowmall v. Bowmall, 127 Fla. 747, 757, 174 So. 14 (con. op.).

Meanin.g of "legal residence"' or "domicile".­"Domicile" answers very much to the common meaning of our word "home." Used in thi s con­nection, "legal residence" or "domicile" means a residence at a particular place, accompanied with positive · or presumptive proof of an intention to remain there for an unlimited time. Wade v. Wade, 93 Fla. 1004, 1007, 113 So. 374.

Legal residence means the place which com­plainant has made the chief seat of his household affairs or home interests. Chisholm v. Chisholm, 98 Fla. 1196, 1213, 125 So. 694.

"Residence" and "domicile" distinguished.­"Any place of abode or dwelling place constitutes a residence, however temporary it may be, whil_e the term domicile relates rather to the legal resi­dence of a person, or his home in contemplation of law. As a result one may be a resident of one jurisdiction ·although having a domicile in an­other." Warren v. Warren, 73 Fla. 764, 784, 75 So. 35, L. R. A. 1917E, 490.

While a person may lose his residence in one sense in a place without acquiring another at some other place, he cannot lose his domicile without acquiring a domicile elsewhere. Every person must be in law "domiciled" somewhere, because every person owes some duties to society and has some obligations to perform to the gov­ernment which affords him protection. Id.

Removal and intention to acquire new domicile must concur to change domicile.-A domicile once established will continue until a new dom­icile is established. The mere intention to acquire a new domicile, unaccompanied by an actual re­moval, avails nothing, neither does the fact of re­moval without the intention establish a domicile. ·Chisholm v. Chisholm, 98 Fla. 1196, 1219, 125 So. 694, quoting Beekman v. Beekman, 53 Fla. 858, 43 So. 923; Wade v. Wade, 93 Fla. 1004, 1009, 113 So. 374.

Thus, removal with · intention of returning does not divest domicile.-"!£ a party removes from his domocile with an intention of returning, he does not lose his domicile, as he can have ac­quired one nowhere else." Warren v . Warren, 73 Fla. 764, 785, 75 So. 35, L. R. A. 1917E. 490.

Thus, if complainant in a suit for divorce is or has become a bona fide resident of the state and intends to remain permanently a citizen of the state mere absence with the intention of return­ing .:..,ill not divest the cotjrts of Florida of juris­diction over such person or subject matter in pro­ceedings of this nature. But it must appear that a bona fide legal residence was established and retained. Wade v. Wade, 93 Fla. 1004, 101 3, 113 So. 374.

another state, upon marrying a man whose domi­cile is in Florida becomes a resident of Florida from the date of such marriage. Chisholm v. Chisholm, 98 Fla. 1196, 1219, 125 So. 694. quot­ing Beekman v. Beekman, 53 Fla. 858, 43 So. 923.

But when proper or necessary wife may acquire a separate domicile from that of her husband for the purpose of a divorce suit. Curley v. Curley, 144 F la. 728, 732, 198 So. 584; Bowmall v. Bow­mall, 127 Fla 747, 755, 174 So. 14.

The law contemplates that prior to establish­ing a separate place of residence a wife must have sufficient lawful reasons for so doing and one of these reasons is a ground or grounds for divorce. Curley v. Curley, 144 Fla. 728, 732, 198 So. 584.

Husband's failure to respond to his marital ob­ligations amounting to a virtual abandonment of his wife held to authorize the establishment by her -of a separate residence in Florida, and in such circumstances the husband's residence in another state could not be said to have been the wife's residence or domicile. Chisholm v. Chisholm, 105 Fla. 402, 408, 141 So. 302.

Capacity to establish separate domicile is ques­tion of fact.-Capacity or right under the law to establish a separate permanent domicile, is a question of fact to be determined by the chan­cellor from the evidence. Bowmall v. Bowmall, 127 Fla. 747, 754, 174 So. 14.

Which wife must show when court's jurisdic­tion is challenged.-When the jurisdiction of the court is challenged the burden is on the wife to show that she was in position to acquire and es­tabli sh a separate domicile from that of her hus­band. Bowmall v. Bowmall, 127 Fla. 747, 755, · 174 So. 14; Curley v. Curley, 144 Fla. 728, 731, 198 So. 584.

Evidence held insufficient to show wife's capac­ity to acquire separate domicile. Curley v. Cur­ley, 144 Fla. 728, 734, 198 So. 584; Bowmall v. Bowmall, 127 Fla. 747, 755, 174 So. 14.

Bill charging residence of complainant substan­tially in language of section is sufficient. Rice v. Rice, 148 Fla. 620, 623, 4 So. (2d) 850, citing MacQueen v. MacQueen, 131 Fla. 448, 179 So. 725.

Affirmative relief to defendant who is not a citizen.-When the defendant has been properly brought into court on a bill filed by the wife for separate maintenance under §§ 65 .09 and 65.10 such defendant, being properly before the court, may have the benefit of an affirmative answer charging the complainant with adultery, and of obtaining a divorce against such complaint based thereon, even though the .defendant interposing such answer is not a citizen of the state of Flor­ida. Vilas v. Vilas, 103 Fla. 1124, 138 So. 731, 732.

Stated in Prall v. Prall, 58 Fla. 496, 50 So. 867, 26 L. R. A. (N. S.) 577.

Cited in Kiplinger v. Kiplinger, 147 Fla. 243, 2 So. (2d) 870; Dye v. Dolbeck, 114 Fla. 866, 154 So. 847.

§ 65.03 HISTORY.

§ 3, Feb. 14, 1835; RGS 3190; CGL 4982.

ANNOTATION.

Generally the domicile of a wife is that of her husband.-The general rule is that the domicile of the wife is that of the husband and is ordina­rily not affected by the fact that the wife is li_vin~ apart from her husband in the absence of a JUdi­cial decree of separation or divorce. Herron v. Passailaigue, 92 Fla. 818, 110 So. 539; Bowmall v. Bowmall, 127 Fla. 747, 755', 174 So. 14; Chis­holm v. Chisholm, 98 Fla. 1196, 125 So. 694; Cur­ley v. Curley, 144 Fla. 728, 198 ~o. 584: .

A female minor, whose father IS dom1c1led in T he mere fact that in Florida a divorce a [ 282]

§ 65.04 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.04

mensa et thoro cannot be obtained does not pre­clude Florida from being bound by the Fed­eral Constitution, Art. IV, § 1, and that, therr>fore, following the mandates of that provision of the Constitution, full faith and credit must be given in Florida to a divorce a mensa et thoro granted in another state. Givens v. Givens, 121 Fla. 270, 277, 163 So. 574.

as well as in order that the. court may judge whether, the facts being proved, they will sup­port the general charge. Crawford v. Crawford, 17 Fla. 180;. Seddon v. Seddon, 82 Fla. 48, 89, So. 348; Kellogg v. Kellogg, 93 Fla. 261, 111 So. 637; Pillard v. Pillard, 127· Fla. 682, 173 So. 838; Prall v. Prall, 58 Fla. 496, 50 So. 867, 26 L . R. A. (N. S.) 577; Chisholm v. Chisholm, 98 Fla.

§ 65.04 1196, 1221, 125 So. 694; Driggers v. Pearson, 141 HISTORY. Fla. 256, 192 So. 881.

In a suit for divorce the bill of complaint §§ 3-5, Oct. 31• 1828 ; § 2• Feb. 14• 1835 ; § 1•' ch. should contain allegations of all facts essential to

134, 1837; RGS 3191 ; CGL 498'3· the cause of action and to the plaintiff's right to ANNOTATION. maintain the suit. Prall v. Prall, 58 Fla. 496, 508,

' I. General Consideration. 50 So. 867, 26 L. R. A. (N. S.) 577; Pillard v. II. Adultery. Pillard, 127 Fla. 682, 173 So. 838.

III. Extreme Cruelty. "Non-support" of complainant wife does not IV. Habitual Indulgence in Violent and Un- constitute a ground or "cause" for divorc~ in this

. governable Temper. state. Chisholm v. Chisholm, 98 Fla. 1l!J6, 125 V. Habitual Intemperance. So. 694.

VI. Desertion. Nor does mere indiscreet or imprudent conduct VII. Divorce Obtained by Defendant in Another · and relations with young men on the part of a

State. married woman, all embraced under the general VIII. Husband or Wife Living at Time of Mar- term "flirting," constitute cause for divorce.

riage. Hancock v. Hancock, 55 Fla. 680, 45 So. 1020, 15

I. GENERAL CONSIDERATION. This section deals exclusively with the grounds

for divorce. Warren v. · Warren, 73 Fla. 764, 777, 75 So. 35, L. R. A. 1917E, 490.

Courts of chancery have jurisdiction to grant divorces upon designated g~;ounds and no other.

L. R. A. (N. S.) 670. Cited in Donnelly v. Donnelly, 39 Fla. 229. 22

So. 648; Miller v. Miller, 33 Fla. 453, 15 So. 222, 24 L. R. A. 137; Johnson v . . Landefeld, 138 Fla. 511, 189 So. 6·66.

II. ADULTERY. The power of the legislature over the subject of Wife's adultery conduced by husband's con­marriage as a civil status and its dissolution is duct is not grounds for divorce.-!£ forced upon unlimited and supreme in the absence of consti- her, adultery on the part of the wife does not tutional limitations, and the law governing the constitute ground for divorce, neither can the prerequisites for bringing suit and the grounds husband claim a divorce on the ground of adul­of divorce being statutory they should be fol- tery when his conduct conduced to or aided it: lowed. Chisholm v. Chisholm, 98 Fla. 11!l6, Neglect of the husband to prc.vidc support for 1224, 125 So. 694. his wife or in any manner to concern himself

It is· not the policy of the law to grant divorces about her may constitute misconduct conducing for postnuptial causes short of marital infidelity, to her adultery but the mere fact of living apart when such causes do not in fact render one of the is no justification for it. McMillan v. McMillan, parties incapable of performing the duties inci- 120 . Fla. 209, 214, 162 So. 524. See also, Chis­dent to the marriage status. The law authorizes holm v. Chisholm, 105 Fla. 402. 141 So. 302. the severance of the matrimonial union only when The meaning of the word adultery in the sec­the conduct of one of the parties renders it un- ond clause is the common law meaning which practicable for the other to further perform th e includes the criminal intent which may be shown marital duties. Hickson v. Hickson, 54 Fla. 556, by the voluntary act but where the act is per-45 So. 474; Prall v. Prall, 58 Fla. 496, 508, 50 So. formed in the belief ' of the existence of a valid 867, 26 L. R. A. (N. S.) 577; Hancock v. Han- marriage the burden is upon the state to show

'cock, 55 Fla. 680, 45 So. 1020, 15 L. R. A. (N. S.) that the person accused knew that the other had 670. a living wife or husband. Chishom v. Chi~hulm,

What shall be deemed sufficient cause for di- 105 Fla. 402, 408, 141 So. 302. vorce is always a matter of law, and it is the duty Wife's technical guilt of adultery not precluding of the court to refuse a divorce unless satisfied her from obtaining divorce.-Where wife married of the sufficiency of the bill and the truth of the and cohabited with anothe1 while an appeal from evidence to establish one of the grounds. Han- her divorce decree from husband was pending, cock v. Hancock, 55 Fla. 680, 45 So. 1020, 15 L . and upon such appeal the divorce decree was held R. A. (N. S.) 670; Chisholm v. Chisholm, 98 Fla. void, it was held that the wife's technical guilt 1196, 1220, 125 So. 694. of bigamous or adulterous conduct was not such

It is not sufficient to allege in general terms the as would constitute adultery precluding her from statutory cause for divorce. In addition to the obtaining a divorce. Chisholm v. Chisholm, J 05 general charge, the complainant must specify Fla. 402, 141 So. 302. leading facts, or at least some facts upon which Proof of adultery.-To prove adultery the law the general charge is based. These facts must be does not require that specific acts be attested so definitely alleged as to apprise the defendant by eyewitnesses. The rule ~pproved by the of the nature of the facts to be proved. and to weight of authority is that if the circumstances enable defendant to prepare his or her defense, proven are such as to lead the guarded discretion

[ 283 1

§ 65.04 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.04

of a reasonable and just man to the guilt of the participants that is sufficient. McMillan v. Mc­Millan, 120 Fla. 209, 212, 162 So. 524, holding evidence sufficient to support finding 'that wife was guilty of adultery.

Stated in Vilas v. Vilas, 103 Fla. 1124. 138 So. 731.

duties." Hancock v. Hancock, 55 Fla. 680, 689, 45 So. 1020, 15 L. R. A. (N. S.) 670; Windham v. Windham, 144 Fla. 563, 566, 198 So. 202; Hayes v. Hayes, 86 Fla. 350, 98 So. 66; Palmer v. Palmer, 26 Fla. 215, 7 So. 864; Beekman v. Beekman, 53 Fla. 858, 43 So. 923.

And may be mental as well as physical. Wal-III. EXTREME CRUELTY. strom v. Walstrom, 124 Fla. 366, 369, 168 So.

Extreme cruelty as ground for divorce is rela- 532; Wjlliams v. Williams, 23 Fla. 324, 2 So. tive. What constitutes it may be determined by 768. the degree of one's culture, his emotions, nervous Extreme cruelty is by no means confirmed to reaction or moral sense. It may also be tested physical violence. It includes in addition to by acts or social conduct to which the spouse af- physical violence such conduct on the part of fected is allergic. The rapid change in social either spouse as would produce in the other con­conventions may generate conditions that bring tinuous, intense mental pain and suffering, dan­on extreme cruelty. Diem v. Diem, 141 Fla. 260, ger to health or a forced abnegation of the mar-

ital relation. Baker v. Baker, 94 Fla. 1001, 1003, 263• 193 So. 65· 114 So. 661; Currie v. Currie, 120 Fla. 28, 33, In arriving at a conclusion, as to what cruelty

162 So. 152. ·

may be properly termed "extreme," the court Extreme cruelty sufficient to authorize a court should consider: (a) The mental and physical to grant a divorce does not necessarily mean bod-condition of the person upon whom the violence ily injury alone, but includes such qmduct on the is inflicted. (b) Whether or not the act of vio- part of the husband as would cause the wife con­lence was a single and exceptional act, and the tinuous mental suffering and would be danger­provocation under which it was committed. (c) ous to her health. Walstrom v. Walstrom, 124 \Vhether the circumstances under which it was Fla. 366, 369, 168 So. 532; Wetherington v. W eth­committed would induce the belief that its repeti- erington, 57 Fla. 551, 49 So. 549; Donald v. Don-tion was very improbable. Donald v. Donald, 21 ld Fl a , 21 a. 571. Fla. 571. The injury or danger of injury may be mental

Depending upon the facts and circumstances.- or physical, but it must be of such a character as What conduct will reach the requirements of the to render it impracticable for the complainant to rule as to "extreme cruelty" must necessarily de- discharge with reasonable safety his or her mar­pend upon the facts and circumstances of each rita! duties. Prall ;, Prall, 58 Fla. 496, 509, 50 case. Wetherington v. Wetherington, 57 Fla. So. 867, 26 L. R. A. (N. S.) 577; Kellogg v. Kel-551, 49 So. 549; Williams v. Williams, 23 Fla. 324, logg, 93 Fla. 261, 111 So. 637. 2 So. 768. Any habitual indulgence on the part of one

It is such conduct as will endanger life or spouse that causes mental torture, undermines the health or cause reasonable fear of injury.-The health, or tends to dethrone the reason of the extreme cruelty that constitutes the statutory other, is sufficient to constitute extreme cruelty as ground for divorce is such conduct by the hus- ground for divorce. Diem v. Diem, 141 Fla. 260, band or wife towards the other con~ort as will 263, 193 So. 65. endanger his or her life, limb or health, or as will Mental pain and physical violence may supple­cause a reasonable apprehension of bodily hurt. ment each other.-1£ mental pain and suffering Prall v. Prall, 58 Fla. 496, 509, 50 So. 867, 26 L. R. or physical violence is not of itself sufficient to A. (N. S.) 577; Kellogg v. Kellogg, 93 Fla. 261, 111 show cause for divorce either may supplement the So. 637; Chisholm v. Chisholm, 98 Fla. 1196, 125 other to show such cause. Baker v. Baker, 94 So. 694; Williams v. Williams, 23 Fla. 324, 2 So. Fla. 1001, 1004, 114 So. 661; Currie v. Currie, 120 768. Fla. 28, 33, 162 So. 152; Williams v. Williams, 23

If extreme cruelty is relied on, physical vio- Fla. 324, 2 So. 768. lence or such treatment or abuse as damages Unhappiness and incompatibility is not extreme health or causes a constant apprehension of phys- cruelty.-Mere inconvenience, unhappiness and in­ical violence, renders cohabitation intolerable or compatibility of temperament or disposition, ren­makes it impractical to discharge marital duties dering the marriage relation between the parties must be shown. Baker v. Baker, 94 Fla. 1001, disagreeable or even burdensome will not author-1004, 114 So. 661; Van v. Van, 100 Fla. 612, 129 ize a d~ree of divorce for extreme cruelty. Prall So. 886. v. Prall, 58 Fla. 496, 509, 50 So. 867, 26 L. R. A.

It is sufficient if, among other things, it be (N. S.) 577; Kellogg v. Kellogg, 93 Fla. 261, 111 shown that the party charged was guilty of such So. 637; Chisholm v. Chisholm, 98 Fla. 1196, treatment as makes it impractical to discharge 1220, 125 So. 694. marital duties. Van v. Van, 100 Fla. 612, 129 What merely wounds the mental feelings is in So. 886. few cases to be admitted, where not accompanied

"Divorce on the ground of extreme cruelty will with bodily injury, either actual or menaced .. be denied, where there is no actual violence, un- Mere austerity of temper, petulance of manners, less the treatment, or abuse, or neglect, or bad rudeness of language, a want of civil attention conduct complained of be such as damages health, and accommodation, even occasional sallies of pas­or renders cohabitation intolerable and unsafe, sian, if they do not threaten bodily harm, do not or unless there are threats of mistreatment of amount to legal cruelty. Hancock v. Hancock, such flagrant kind as to cause reasonable and 55 Fla. 680, 688, 45 So. 1020, 15 L. R. A. (N. S.) abiding apprehension of bodily violence, so as 670; Underwood v. Underwood, 12 Fla. 434, 440 to render it impracticable to discharge marital (con. op.).

[ 284 l

§ 65.04 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.04

Intent to cause mental pain or suffering need not be alleged or shown.-This section does not require the bill to allege or the evidence to show that the acts of defendant were done with a de­liberate intent to cause mental pain and suffering to the complainant. If it alleges a course of con­duct that is shown to have met the terms of the statute, that is sufficient. Diem v. Diem, 141 Fla. 260, 262, 193 So. 65 .

Withholding marital sex privileges as "cruelty." -While it is not necessarily cruelty for either spouse to withhold from the other marital sex privileges, especially in the case of marriage de convenienti, yet a circumstance of this sort is to be considered in conjunction with all the other facts. Currie v. Currie, 120 Fla. 28, 33, 162 So. 152.

In Currie v. Currie, 120 Fla. 28, 33, 162 So. 152, evidence that husband refused for a period of about five years to have any sexual connection with his wife, together with other facts, was held to constitute "extreme cruelty".

Accusing wife with want of virtue.-Where a husband falsely accuses his wife with want of vir­tue, having sexual intercourse with another man from whom she had contracted a loathsome ve­nereal disease and persists in making such false accusation it may constitute such extreme cru­elty as to be sufficient ground for divorce. Weth­erington v. Wetherington, 57 Fla. 551, 49 So. 549.

A continued and persistent course of ruthless acts of connubial misbehavior purposely exhib­ited by one spouse toward the .other with an as­sociated force calculated to inhibit . the injured spouse from discharging with reasonably safety and peace of mind the marital relations between the parties over a considerable period of time and not casually, may make out a case not only of cru­elty, but of extreme cruelty, within the intent of this section. Gratz v. Gratz, 127 Fla. 605, 610, 173 So. 442.

Introducing loose woman into invalid wife's bedroom. - To introduce into the bedroom of an invalid wife a woman of known dissolute char­acter in an almost nude condition coupled with lewd behavior constitutes extreme cruelty. Hooker v. Hooker, 65 Fla. 53, 61 So. 121, 43 L . R. A. (N. S.) 964.

Husband's association with another woman.­Where husband went to places ·of amusement with another woman of bad reputation, paid her bills, remained at her home frequently until late, but all his conduct with the other woman fell short of adultery, it was held that decree granting divorce to wife on ground of extreme cruelty was warranted on the allegations of the bill of com­plaint, supported by sub;tantial evidence. Wal­strom v. Walstrom, 124 Fla. 366, 168 So. 532.

Threats to leave and go to another country.­Where facts charged and relied upon as consti­tuting "extreme cruelty" were that the defendant husband "did upon several occasions threaten to leave your oratrix and go to another country," such allegation if proven could not have legally justified a decree of divorce. Chisholm v. Chis­holm, 98 Fla. 1196, 125 So. 694.

Placing hand on his wife's shoulder and re­questing her to leave 'the room is not an act of extreme cruelty. Donald v. Donald, 21 Fla. 571.

Bills of complaint held sufficient.-See Diem v.

Diem, 141 Fla. 260, 262, 193 So. 65; Gratz v. Gratz, 127 Fla. 605, 610, 173 So. 442.

Bills of complaint held insufficient.-See Han­cock v. Hancock, 55 Fla. 680, 689, 45 So. 1020, 15 L. R. A. (N. S.) 670; Prall v. Prall, 58 Fla. 496, 509, 50 So. 867, 26 L. R. A. (N. S.) 507.

Evidence sustaining divorce on grounds of cru­elty.-See Rice v. Rice, 148 Fla. 620, 623, 4 So. (2d) 850; Windham v. Windham, 144 Fla. 563, 566, 198 So. 202.

Cited in Beckwith v. Bailey, 119 Fla. 31fi\ 161 So. 576.

IV. HABITUAL INDULGENCE IN VIO­LENT AND UNGOVERNABLE

TEMPER. Temper must be displayed towards complain­

ant habitually.-!£ habitual indulgence in a violent and ungovernable temper is relied on, it must be shown that defendant's temper was displayed to­wards complainant habitually so as to injuriously: affect health, personal safety and comfort or to render life an oppressive and intolerable burden making it impracticable to perform marital duties under such burden. Baker v. Baker, 94 Fla. 1001, 1004, 114 So. 661; Kellogg v. Kellogg, 93 Fla. 261, 111 So. 637; Palmer v. Palmer, 26 F la. 215, 7 So. 864; Hickson v. Hickson, 54 Fla. 556, 45 So. 474. When~ divorce is sought because of violent tem­

per the bill must allege facts showing violent temper which will injuriously affect safety, health, or personal comfort. Taylor v. Taylor, 63 Fla. 659, 58 So. 238.

Occasional outbursts of passion, etc., rendering relations unpleasant are not cause for divorce.­Occasional outbursts of passion, nagging, petu­lance, readiness to anger, frequent and unreason­able complaints, though made in a loud-voiced, boisterous manner, if only calculated to render the relations between the parties unpleasant and disagreeable, or unhappy, do not afford sufficient cause for divorce. Baker v. Baker, 94 Fla. 1001, 1004, 114 So. 661; Kellogg v. Kellogg, 93 Fla. 261, 11 So. 637; Palmer v. Palmer, 26 Fla. 215, 7 So. 864.

Indulgence in petulance, or the exhibition of temporary and unjustified temper, does not con­stitute habitual indulgence in violence and ungov­ernable temper. Beekman v. Beekman, 53 Fla. 858, 43 So. 923.

Nor is "frequent" indulgence in violent tem­per.-Frequent indulgence in violent and ungov­ernable temper may ripen into and become habit­ual indulgence, but until it becomes habitual, it affords no ground for divorce under this section. Kellogg v. Kellogg, 93 Fla. 261, 111 So. 637.

Thus, an allegation in a bill for divorce that the defendant frequently indulged in violent and un­governable temper is not a "sufficient charge of "habitual indulgence by defendant in violent and ungovernable temper," the word "frequently" not being synonymous with "habitually." Id.

Or conduct merely causing great humiliation, mental anguish, etc.-Allegations of fact showing such conduct towards the other consort as is cal­culated to cause merely great humiliation, mental anguish, unhappiness, inconvenience, financial loss, estrangement of family ties, loss of friends, separation of members of the family or the like, are not sufficient to warrant a divorce upon the

[ 285]

§ 65.04 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.04

ground of violent or ungovernablt: temper. Hick­son v. Hickson, 54 Fla. 556, 45 So. 474; Taylor v. Taylor, 63 Fla. 659, 58 So. 238.

V. HABITUAL INTEMPERANCE. Habitual intemperance is a persistent habit of

becoming intoxicated from the use · of strong drinks. The offense is the habit, and frequent recurring drunkenness from such use proves it. McGill v. McGill, 19 Fla. 341.

Habitual drunkenness or intemperance as a statutt ry ground for divorce means an irresistible habit of getting drunk, a fixed habit of drinking to excess, such frequent indulgence to excess as to show a formed habit and inability to control the appetite. Hayes v. Hayes, 86 Fla. 350, 352, 98 So. 66.

And has no application to the drug habit.- The legislature used the term "habitual intemperance" in its plain, ordinary and usual sense, viz., the in­temperate use of alcoholic beverages, and has no application to the drug habit. Hayes v. Hayes, 86 Fla. 350, 353, 98 So. 66.

Praying divorce on ground that defendant "is habitually intemperate" is sufficient.-Where a di­vorce is prayed on the ground that the defend­ant "is habitually intemperate," it is not neces­sary to specify more definitely the facts consti­tuting "habitual intemperance," the charge of itself implying that the defendant has a persistent habit of becoming intoxicated from the use of strong drinks, and thus rendering his presence in the marital relation disgusting and intolerable. Burns v. Burns, 13 Fla. 369.

VI. DESERTION. Meaning of wilful and obst:n~te.-Wilful means

on purpose, intentional, and obstinate means de­termined, fixed, persistent. Hudson v. Hudson, 59 Fla. 529, 532, 51 So. 857, 138 Am. St. Rep. 141, 29 L. R. A. (N. S.) 614.

The essence of a wilful obstinate desertion by a wife consists in her refusing to live with her husband when he does his marital duty and wants her to live with him. Hill v. Hiii, 62 Fla. 493, 56 So. 941, 39 L. R. A. (N. S.) 1117.

It is essential to prove an intention to desert where the ground on which a divorce is sought is wilful, obstinate and continued desertion. Craw­ford v. Crawford, 17 Fla. 180; Hill v. Hill. 62 Fla. 493, 56 So. 941, 39 L. R. A. (N. S.) 1117.

As continued separation with no intention to desert is not desertion.-Continued separation be­tween husband and wife which may be consistent under the proofs with no intention to wilfully and obstinately desert, is not a desertion within the meaning of the statute. Crawford v. Crawford, 17 Fla. 180; Hill v. Hill, 62 Fla. 493, 56 So. 941, 39 L. R. A. (N. S.) 1117.

Party intending to bring cohabitation to an end commits the desertion.-It is immaterial which of the married parties leave the marital home, the one who intends bringing the cohabitation to an end commits the desertion. The party who drives the other away is the deserter, and a wife may drive her husband away. Hudson v. Hudson, 59 Fla. 529, 51 So. 857, 138 Am. St. Rep. 141, 29 L. R. A. (N. S.) 614.

A husband without the wife's consent has the right to establish the family domicile and it is her duty 'to live with him at his domicile if it is rea-

sonably possible for her to do so. But if a hus­band by his own act intentionally brings the co­habitation to. an end, and by his own acts keeps it at an end for the statutory period, he is guilty of desertion and she is entitled to a divorce on that ground. Hunt v. Hunt, 61 Fla. 630, 54 So. 390; Walker v . Walker, 64 Fla. 536, 59 So. 898; Fielding v. Fielding, 67 Fla. 143, 64 So. 546.

Desertion begins when intention to remain away is formed.-Desertion begins at the time when the intention not to return and the resolu­tion to remain away is formed. Phelan v. Phe­lan, 12 Fla. 449, 452.

Although interrupt~d by the institution of liti­gation.-Where wife's desertion was willful and obstinate in its inception, time began to run against the wife immediately upon her first de­sertion of her husband, although interrupted by the institution of litigation which stopped the run­ning of the statute only so long as the litigation was pending. Woodward v. Woodward, 122 Fla. 300, 302, 165 So. 46, holding that wi)ere time when no litigation was pending amounted to more than one year, husband was entitled to a divorce be­cause of wife's desertion.

As voluntary separation while divorce proceed­ings are pending does not constitute desertion.­The voluntary separation by a wife from her hus­band, while proceedings for a divorce are pend­ing between them, where such proceedings are not a sham and pretense, does not constitute such willful desertion <).S would authorize a divorce therefor. The settled usage of the courts, as a re­gard for public decency. is to require the parties, under such circumstances, to live separately. Woodward v. Woodward, 122 Fla. 300, 302, 165 So. 46, quoting Palmer v. Palmer, 36 Fla. 385, 18 So. 720. M~re refusal to accord marital privileges is not

itself desertion.-The mere refusal of a wife to accord to the husband the marital privileges law­ful only to the husband is not of itself such a de­sertion of the husband as to authorize him to se­cure a divorce on the statutory ground of wilful, obstinate and continued desertion 'for one year. Prall v. Prall, 58 Fla. 496, 510, 50 So. 867, 26 L. R. A. (N. S.) 577.

Wife need make no effort to effectuate return of husband who has abandoned her.-When the husband without cause abandons the wife, and makes no offer to resume the marital relation she will not be denied a divorce because she ~akes no effort to bring. him back. Fielding v. Field­ing, 67 Fla. 143, 64 So. 546.

However, husband, where young wife has re­turned to parents, should make efforts to discharge marital duties. For example, where a very young wife without her husband's consent goes to par­ents' home, and soon thereafter the first child of the couple is born at her parents' home, and the husband makes no proper effort in the discharge of his duty to the wife and the child, and the wife and child r·emain with her parents, he is not enti­tled to a divorce on the ground of desertion. Hiii v. Hill, 62 Fla. 493, 56 So. 941, 39 L. R. A. (N. S.) 1117.

The burden of proof rested upon the plaintiff to establish continuous, obstinate and willful de­sertion for a period of oqe year prior to the fit-

[ 286]

§ 65.05 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.07

ing of the bill of complaint. Baptist v. Baptist, 130 Fla. 702, 705, 178 So. 846. · HISTORY.

§ 65.05

Sufficiency of allegations of desertion.-In a bill § 4, Oct. 31, 1828; RGS 3192; CGL 4984. for divorce on the ground of desertion it is suf­ficient to allege the statutory language, coupled with the statement that the husband without cause left the wife penniless and continued away from her for the statutory period without contributing to her support. Fielding v. Fielding, 67 Fla. 143, 64 So. 546.

Allegations not warranting divorce, see Prall v. Prall, 58 Fla. 496, 509, 50 So. 867, 26 L. R. A. (N. S.) 577.

Evidence warranting finding of desertion.-See Ginsburg v. Ginsburg, 144 Fla. 456, 457, 198 So. 92.

VII. DIVORCE OBTAINED BY DEFEND-ANT IN ANOTHER STATE.

Constitutionality.-This section does not offend § 1, Art. IV of the Constitution of the United States or § 1 of Art. XIV of the amendments to the Constitution of the United States or· § 12 of the Declaration of Ri ghts of the Constitution of Flordia. Maclay v. Maclay, 147 Fla. 77, 80, 2 So. (2d) 361.

This statutory provision only provides a ground upon which divorce may be granted but it does not make it mandatory upon the courts of Flor­ida to grant a divorce in all cases in which it may appear that the defendant named in the suit pro­cured a divorce of any sort from the plaintiff in that suit in a state other than the state of Flor­ida. Maclay v. Maclay, 147 Fla. 77, 80, 2 So. (2d) 361.

Applies to divorce a mensa et thoro.-This sec­tion prescribes .the obtaining of a divorce from the complainant in any other state or country is a ground of divorce without excluding a divorce a mensa et thoro as such ground, thus it applies to di­vorces a mensa et thoro as well as divorces a vinculo matrimonii. Givens v. Givens, 121 Fla. 270, 277, 163 So. 574, holding a Virginia d_ecree of divorce a mensa et thoro within the purview and meaning of this section. But a New York decree of divorce a mensa et thoro was held not to constitute a decree of divorce within the con­templation of this section. Maclay v. Maclay, 147 Fla. 77, 84, 2 So. (2d) 361, distinguishing Givens v. Givens, 121 Fla. 270, 163 So. 574.

VIII. HUSBAND OR WIFE LIVING AT TIME OF- MARRIAGE.

Generally. - "Our statutes make bigamy (whether innocently committed or not) a ground for divorce." Worman v. Worman, 113 Fla. 233, 235, 152 So. 435 (con. op.).

Bigamous marriage is void.- The marriage of a man and woman, where one of them has a hus­band or wife by a prior marriage, who is then living and undivorced, is generally held to be ab­solutely void, and not merely voidable, and being a nullity, no judicial decree is ordinarily neces­sary to avoid same. Jones v. Jones, 119 Fla. 824, 832, 161 So. 836, 104 A. L. R. 1. Bu~xpressly recognizes that even

a bigamous marriage has certain attributes of le­gality which operate to protect acts done under it from the odium of immorality and nullity. Worman v. Worman, 113 Fla. 233, 235, 152 So. 435 (con. op.).

§ 65.06 HISTORY.

§ 1482 RS 1892; RGS 3193; CGL 4985.

REVISION NOTE. This section was taken from § 3193 RGS,

which contains the following exception, to-wit: "Except in cases of incurable insanity as stated." This reference appears to have been to a law pro­viding that incurable insanity was a ground for divorce but which law was repealed about 1905. It seems that this excepticm was retained in the 1906 and 1920 statutes through inadvertence. Said provision has been eliminated in this revision.

ANNOTATION. Cited in Shrader v. Shrader, 36 Fla. 502,. 18 So.

672.

§ 65.07 HISTORY.

§§ 1, 2, ch. 3581, 1885; RGS 3194; CGL 4986.

ANNOTATION. Temporary alimony defined.-Temporary ali­

mony is an allowance made to the wife for her maintenance during the pendency of the action as provided by this section. Floyd v. Floyd, 91 Fla. 910, 915, 108 So. 896.

Alimony pendente lite is awarded to furnish the wife, from whom the husband has withdrawn his support, with the means of living, and for the fur­ther reason, in which there is a high public irrter­est, that she may not become a charge upon the state, while her rights are being adjudicated. Counsel fees are awarded to enable the wife to maintain or defend her suit. Holly v. Holly, 81 Fla. 881, 885, 89 So. 132.

Alimony signifies nourishment or sustenance and has reference to that al!owance which the husband may be required to pay his wife for her maintenance when living separate from him by reason of divorce or for other causes. Gi!i v. Gill, 107 Fla. 588, 589, 145 So. 758; Floyd v. Floyd, 91 Fla. 910, 915, 108 So. 896.

The term "suit money" is broad enough to in­clude attorneys' fees and all costs of the divorce proceeding pendente lite. Orr v. · Orr, 141 Fla. 112, 115, 192 So. 466; Smith v. Smith, 90 Fla. 824, 828, 107 So. 257.

The granting or withholding of temporary ali­mony and suit money is within the discretion of the court to whom the application therefor is · made, and is not a matter of right. Floyd v. Floyd, 91 Fla. 910, 915, 108 So. 896; Underwood v. Underwood, 12 Fla. 434.

"This allowance is not a matter of right in the wife. It is a creature of the ecclesiastical courts, the purpose of which is to aid · the wife to have justice done when she is without means, .and makes a prima facie case on her pleadings; and is never awarded when the wife fails in her suit and the making of the order for it is postponed to the hearing.1' Smith v. Smith, 90 Fla. 824, 828, 107 So. 257.

Which discretion is judicial and not an arbitrary one.-Discre1"ion of the court in granting or with­holding temporary alimony or suit money is not

[ 287] .

§ 65.07 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.07

an arbitrary one; it is a judicial discretion to be means to maintain herself during the litigation, exercised in accordance with established rules of . and with which to employ counsel; (2) It must law wisely adapted to the facts apparent in each also appear that the husband has means to supply particular case and is subject to review by the this necessity. Floyd v. Floyd, 91 Fla. 910, 915, appellate court. Floyd v. Floyd, 91 Fla. 910, 916, 108 So. 896; Shepard v. Shepard, 128 Fla. 72, 77, 108 So. 896. 174 So. 330; Penney v. Penney, 146 Fla. 652, 6!)7,

The statutes do not authorize an award of ali- 1 So. (2d) 883 (dis. op.). See also, McAllister v. mony and suit money as a matter of course, but McAllister, 140 Fla. 207, 208, 191 So. 303; Prine necessarily rests upon the exercise of sound ju- v. Prine, 36 Fla. 676, 18 So. 781, 34 L. R. A. 87. dicial discretion on the part of the chancellor, In suits for divorce the wife is considered a as shown by the use of the words "petition well privileged suitor and is entitfed to be subsisted founded," appearing in this section, and the words out of the husband's estate, and to be furnished "as the circumstances of the parties may render with the means of prosecution or defense. But just," appearing in § 65.09. Penney v. Penney, an exception exists to the rule where a wife has 146 Fla. 652, 657, 1 So. (2d) 883 (dis. op.). an income competent to her support and the main-

The matter of granting a stay of an order tenance of the suit. Meeker v. Meeker, 74 Fla. awarding temporary alimony and counsel fees is 442, 445, 76 So. 197. See also, Floyd v. Floyd, 91 within the judicial discretion of the circuit judge, Fla. 910, 91&, 108 So. 896; Chaires v. Chaires, 10 subject to review by the supreme court upon ap- Fla. 308; Haddon v. Haddon, 36 Fla. 413, 18 So. plication by the appellant. Holly v. Holly, 81 779. Fla. 88l, 89 So. 132. Where wife's petition alleged that she desired

And such matters should be settled before wife to defend the suit and also stated her necessi­begins her defense.-The chancellor may exercise ties and the ability of the husband to supply such his discretion about determining whether wife necessities, and it appeared that tqe husband was should be allowed attorney's fee and suit money, not without fault, an order of reference to a spe­but they should be settled before the defendant cia! master to take testimony as to the faculties wife is required to enter and begin her defense. of the parties under the pleadings, was not in con­McAllister v. McAllister, 140 Fla. 207, 208, 191 flict with this section, and decree awarding wife So. 303. counsel fees and requiring husband to pay costs

Wife must show probable cause for divorce or up to the time of the order of reference was not a valid defense.-When the wife applies for tern- erroneous. Shepard v. Shepard, 128 Fla. 72, 77, porary alimony and suit money, she must show 174 So. 330. that she has a probable cause for divorce, or, if Whe? wife'~ bill for divorce alleged that she she is the defendant, that she has a valid defense was w1thout mcome, had no property, and · was to the suit. Smith v. Smith, 90 Fla. 824, 828, 107 without means to employ counsel, it was proper So. 257. See also, Phelan v. Phelan, 12 Fla. 449. for the court to appoint a master to take testi-

"The allowance of temporary alimony or suit mony as to the faculties of the parties, although money is under the terms of the statute condi- the husband answered the bill denying the exist­tioned on the answer or petition seeming 'well ence of the alleged grounds for divorce and charg­founded.'" Shepard v. Shepard, 128 Fla. 72, 77, ing the wife with the commission of adultery. 174 So. 330; Floyd v. Floyd, 91 Fla. 910, 915, 108 Meeker v. Meeker, 74 Fla. 442, 76 So. 197. So. 896. Generally no allowance can be made for coun-

If it clearly appears from the pleadings in the sel fees which have already been earned; such an suit that the wife has no defense to the suit ali- allowance looks to the future, and there can be many and suit money should be denied. Shep- no necessity for an allowance to make a defense ard v. Shepard, 128 Fla. 72, 77, 174 So. 330. which has already been made. Smith v. ~:nith,

This and the three following sections confer 90 Fla. 824, 828, 107 So. 257. on courts of chancery the authority and power However, where an allowance for solicitor's to make and enter orders or decrees requiring fees pendente lite is prayed and the pleadings of the payment of alimony, temporary and perma- the wife make ou.t a prima facie case, and testi­nent, suit money, and attorneys' fees, but no ali- many is taken bearing on such matter either on mony shall be granted to an adu~us wife. special hearing or during the taking of testimony Tenny v. Tenny, 147 Fla. 672, 674/~.o. (2d) 375. on the main issues, the supreme court is not pre-

The voluntary absenting of the wife from the pared to say that under this section an order of husband's household, without cause, will bar her the court allowing solicitor's fees, even though de­right to temporary alimony. Where, therefore, a layed' until the final decree, would be in no case charge to that effect is asserted by the husband valid and enforceable; though disposition of such in defense of the wife's application for temporary matters in the earlier stages of the cause, is both alimony, the temporary alimony sought will be de- usual and the better practic~. Id. nied unless a sufficient showing is made by the If no order awarding alimony pendente lite is wife in refutation of such charge. It is unneces- made until after decree for divorce, such an order sary, however, to inquire into the merits of the should not be then made unless the nature of the principal controversy further than to establish a case makes it equitable and just. Underwood v. prima facie showing. Floyd v. Floyd, 91 Fla. Underwood, 12 Fla. 434. 910, 916, 108 So. 8!16. Agreement as to what constitutes reasonable

Also two facts must concur and be made to ap- attorney's fee.-Where the parties agreed through pear before a court is justified in making an al- their solicitors by stipulation as to what was ·a lowance to the wife in a divorce suit for tempo- fair and reasonable sum to be allowed to the rary alimpny and suit money: (1) The necessity wife for alimony pendente lite and solicitor's fees of the wife from · want of means or sufficient it was held error for the court, in its final decree,

[ 288 l

§ ae;.os DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.08

to maKe· an additional allowance of fee to wife's solicitor for services pendente lite, especially where such decree granted complainant husband a divorce for the fault of the wife, and denied permanent alimony. Smith v. Smith, 90 Fla. 824, 107 So. 257.

S.ufficiency of bill of complaint.-Mere question of the sufficiency of the bill of complaint is not essentially in issue on an application for tempo­rary alimony, solicitors' fees and costs, as such amendable defects as may appear in the bill may be amended prior to the entry of final decree. Driggers v. Pearson, 141 Fla. 256, 259, 192 So. 881, citing Condon v. Condon, 117 Fla. 98, 157 So. 177. See also, in this connection, Miller v. Miller, 33 Fla. 453, 15 So. 222, 24 L. R. A. 137.

Petition denied..-Defendant wife's petition for temporary alimony and suit money held properly denied by chancellor. Goolsby v. Goolsby, 114 Fla. 578, 579, 154 So. 522.

such an order appropriate. Vinson v. Vinson, 139 Fla. 146, 161, 190 So. 454.

An allowance of temporary alimony and suit money in the supreme court may be made during the pendency of an appeal from a final decree of divorce, and where the husband appeals from an order granting alimony pendente lite made by the trial court. I d.

Divorce decree retaining jurisdiction.-Portion of the final divorce decree by the terms of which the lower court retained jurisdiction of the sub­ject matter and .the parties "and the allowance to her (the wife) of whatever amount which may be reasonable and just for attorneys' fees which may be incurred in the future" was erroneous. Tenny v. Tenny, 147 Fla. 672, 674, 3 So. (2d) 375.

And granting judgment for accrued arrearages for temporary alimony.-Final divorce decree was not erroneous because it allowed or granted a money judgment for accrued arrearages for tem­porary alimony previously allowed the wife and minor child and for money loaned by the wife to the husband during coverture. Tenny v. Tenny, 147 Fla. 672, 674, 3 So. (2d) 375.

Contempt.-A citation for contempt will issue for a wanton or willful failure to comply with an interlocutory order allowing attorneys' fees. Orr v. Orr, 141 Fla. 112, 115, 192 So. 466.

Cited in Worman v. Worman, 113 Fla. 233, 152 So. 435.

§ 65.08

The only foundation for an order for alimony, pendente lite, suit money and attorneys' fees is the then existence of the marital relation between the parties. Vinson v. Vinson, 139 Fla. 146, 159, 190 So. 454, overruling Frohock v. Frobock, 117 Fla. 603, 158 So. 106, and following, Banks v. Banks, 42 Fla. 362, 29 So. 318; Wood v. Wood, 56 Fla. 882, 47 So. 560; Arendall v. Arendall, 61 Fla. 496, 54 So. 957; Ann. Cas. 1913A, 662; Chaves v. Chaves, 79 Fla. 602, 84 So. 672, and Carson v. Oldfield, 99 Fla. 862, 127 So. 851.

The allowance by the court of alimony, suit HISTORY. d I f

§ 7, Oct. 31, 1828; § 12, Oct. 31, 1828; RGS money, an counse ees rests entirely on the CG facts of each case, but it is fundamental and has

3195; L

4987·

been consistently held by the supreme court from ANNOTATION. territorial days that marriage must be established Cross reference.-As to alimony pendente lite, prior to the entry of an order requiring the pay- see note to § 65.07. ment of alimony. Tenny v. Tenny, 147 Fla. 672, Nature of permanent alimony.-Permanent ali-674, 3 So. (2d) 375. mony is not a sum of money or a specific p~opor-

. Hence, husband owes no duty after final de- tion of the husband's estate given absolutely to cree of divorce.-!£ a decree is entered dissolving the wife. It is a continuous allotment of sums the marriage, the former wife certainly bas no payable at regular periods for her support from standing in a court -of chancery and there is no year to year. Phelan v. Phelan, 12 Fla. 449, 456. duty or obligation due her by the former husband The legal liability of a divorced husband to pay under the provisions of this and the three follow- permanent alimony is in the nature of an obliga­ing sections. Tenny v. Tenny, 147 Fla. 672, 574, tion or duty to a stranger. Duss v. Duss, 92 Fla. 3 So. (2d) 375. 1081, 1089, 111 So. 382.

Where the marital relation betwee.n husband The only class barred absolutely from alimony is the adulterous wife. In all other cases, the

and wife has been dissolved by a final decree of chancellor may award such amounts for alimony d.:vorce, the divorced wife is not entitled to an as in the "circumstances of the parties and the na­allowance by the supreme court of alimony pen- ture of the case may be fit,. equjtable and just." dente lite and attorney's fees, pending an appeal , Randolph v. Randolph, 146 Fla. 491, 493, 1 So. taken· by her · former . husband from an order (2d) 48o •. which adjudicated the amount of permanent ali- The concluding part of this section barring ali­mony in arrears and provided for the payment many applies 'only to an "adulterous wife." John­thereof in installments, and modified and reduced son v. 1 ohnson, 128 Fla. 666, 667, 175 So. 234. the monthly installments of said alimony. Vin- And where wife is otherwise at fault allowance son v. Vinson, 139 Fla. 146, 149, 190 So. 454, over- is discretionary.-Aside from adultery, the cir­ruling Frohock v. Frohock, 117 Fla. 603, 158 So. cuinstances and conduct of an offending spouse 106. might be such as to bar her from alimony but

But decree of divorce is not final pending ·ap. this is a ·· matter · solely in the. discretion of the peal therefrom.-A decree granting divorce and chancellor governed by equity and justice and the alimony is of cour~e, when appealed from, not re- condition of both parties. Randolph v, Ran­garded as final until affirmed by the appellate dolph, 146 Fla. 491, 493, 1 So. (2d) 480; Cowan court, and pending the appeal, the supreme court v. Cowan, 147 Fla. 473, 2 So, (2d) 869, can grant alimony pendente lite, counsel fees and . In a concurring opinion by Brown, C, J,, ln the cost of perfecting the appeal, where the needs Cowan v. Cowan, 147 Fla. 473, 2 So, (2d) 869, lt e£ the wife' and the ability of the husband make was said, "The effect of the holding In this case,

Fla. Stat.-10 [ 289 )

§ 65.09 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.10

is, in my opinion, to defii;~itely overrule the hold- v. Preston, 116 Fla. 246, 251, 157 So. 197, 198 ing of this Court in Phinney v. Phinney . [77 Fla. (con. op.). 850, 82 So. 357 ]; the question involved being And complainant must allege and prove resi­squarely presented in this case. Therefore there dence for the statutory period.-Where alimony is need be no uncertainty in the minds of the bench sought without divorce, under this section, the and bar as to the position of this Court on this applicant must allege and prove that she has le­question, which involved, . of course, th~ cons.trtlc- gaily been a resident and citizen of this state for tion of [this section]." The holding 111 P hmn ey the statutory period prior to the filing of applica­v. Phinney, supra, was that this section restricted tion. Miller v. Miller, 33 Fla. 453, 15 So. 222, 24 thi! granting of alimony upon a decree of divo:ce L. R. A. 137; Donnelly v. Donnelly, 39 Fla. 229, to cases in which the suit is brought by the w1fe, 231, 22 So. 648. See also, Simon v. Simon, 73 and that permanent alimony could not be awarded F la. 919, 75 So. 35. to a former wife in a sui t brought by husband, The power of the court to grant alimony upon where the divorce was granted for the fault of the the grounds that a cause for divorce exists is de­wife. For cases in accord with the Phinney case, pendent upon the complainant's residence in this see Smith v. Smith, 90 Fla. 824, 832, 107 So. 257; state having continued for statutory period before Baker v. Baker, 94 Fla. 1001, 1007, 114 So. 661; the application for the relief is made. Warren v. Gill v. Gill, 101 Fla. 588, 590, 145 So. 758; Erd- Warren, 73 Fla. 764, 783, 75 So. 35, L. R. A. mans v. Erdrnans, 90 Fla. 858, 107 So. 188; Carl- 1917E, 490; Wood v. Wood, 56 Fla. 882, 47 So. ton v. Carlton, 78 Fla. 252, 83 So. 87 ; Raborn· v. 560. R1.born, 81 Fla. 51, 87 So. 50.-Ed. note. Where a suit for alimony is brought under this

Where decree granting husband a divorce on section, predicated upon the existence of a ground the ground of desertion by wife was sustained for divorce, the complainant should allege and by the evidence and it did not appear that the prove residence in this state for the requisite stat­allowing of alimony to the wife was not justified utory period before the filing of the bill, and also by an equitable consideration of the whole rec- the existence of the marital relation between the ord, the decree was affir_rned. Mathews v. Ma- complainant and the defendant, and a ground for thews, 117 Fla. 60, 157 So. 195. . . divorce under the statute in favor of the corn-

Even adulterous wife may recover spectal equ1- plainant. Marsicano v. Marsicano, 79 Fla. 278, ties in husband's property.-The provisions of this 84 So. 156. ' section to the effect· that no alimony shall be Alimony pendente lite.-The statutes do not au­granted to an adulterous wife do not preclude the tho.rize an award of alimony and suit money as a ascertainment and allowance by the court of an matter of course, but necessarily rests upon the amount to the wife for her special equity in prop- . exercise of sound judicial discretion on the part erty and business of the hu~band toward. whi~h of the chancellor, as shown by the use of the she is shown to have contnbuted rnatenally 111 words "petition well founded," appearing in § funds and industry through a period of years 65.07, and the words "as the circumstances of the while the marriage remained undissolved. Heath parties may render just," appearing in this sec­v. Heath, 103 Fla. 1071, 1075, 138 So. 796, 82 A. tion. Penney v. Penney, 146 Fla. 652, 657, 1 So. L. R. 537. (2d) 833 (dis. op.).

An allowance to an adulterous wife for her spe- As to alimony pendente lite generally, see note cia! equity in property and business of hu_sband, to § 65.07. · is not alimony and should never be made 111 any The sufficiency of the bill of complaint is not Case Unless Shown to be Warranted by special · ll · · essent1a y m tssue on an application for tempo-facts and circumstances. Id. rary alimony, solicitor's fees and costs, as defects,

Allowance of alimony by voluntary agreement. if they exist in the bill as filed, may be arnenda­-In Johnson v. Johnson, 128 Fla. 666· 175 So. 234• able. Condon v. Condon, 117 Fla. 98, 100, 157 it was held that chancellor properly 'awarded wife S

. b t d o. 177. alimony in a suit for divorce, havmg. een gran. e Evidence not warranting relief under this sec-because of delinquency charged agamst the wtfe, tion. See Godwin v. Godwin. 139 Fla. 309, 310, where the record disclosed that the allowance of 190 So. 603; Van v. Van, 100 Fla. 612, 614, 129 So. alimony was by voluntary agreement of the bus- 886; Chambers v. Chambers, 125 Fla. 359, 360, 169 band. So. 848.

Quoted in Van Loon v. Van Loon, 132 Fla. 535• Applied in Dickenson v. Sharpe, 94 Fla. 25, 539, 182 So. 205. 113 So. 638; Driggers v. • Pearson, 141 Fla. 256,

Cited in Miller v. Miller, 33 Fla. 453, 15 So. 222, 192 So. 881.

24 L. R. A. 137; Bronk v. State, 43 Fla. 461 · 31 Stated in part in Gill v. Gill, 107 Fla. 588, 145 So. 248, 99 Am. St. Rep 119; Dickenson v. Sharpe, So. 758. 94 Fla. 25, 113 So. 638: Stoneburg v. Stoneburg, Cited in Kiplinger v. Kiplinger, 147 Fla. 243, 2 120 Fla. 188, 162 So. 334. So. (2d) 870; Bronk v. State, 43 Fla. 461, 31 So.

§ 65.09 248, 99 Am. St. Rep. 119; Mathews v. ' Mathews 117 Fla. 60, 157 So. 195 (dis. op.); Duss v. Duss: 118 Fla. 705, 160 So. 488; Woodward v. Wood­ward, 122 Fla. 300, 165 So. 46; Hancock v. Han­cock, 128 Fla. 684, 175 So. 734; Dow v. Dow, 140 Fla. 810, 192 So. 323.

HISTORY. §§ 1, 2, ch. 3581, 1885 ; RGS 3196; CGL 4988.

ANNOTATION. Relief under this section is in the nature of a

limited divorce.-Th<! rights to the relief author­ized by this section is in the nature of a limited § 65.10 divorce and is only authorized under circum- HISTORY. stances that divorce itself is authorized. Preston § 1486 RS 1892; RGS 3197; CGL 4989.

[ 290]

§ 65.10 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.10

ANNOTATION. sufficient to meet the law's requirement as to resi-This right of the wife is an equitable demand dence under this section.

for maintenance in the nature of alimony arising The provis_:ons of this section do not require out of the duties incident to the marital status, nor is it essential for -either party to be a resident and can only be secured or enforced by her in a of the state so as to confer on the courts of Flor­court of equity. Bronk v. State, 43 Fla. 461, 472, ida jurisdiction of the parties and the subject 31 So. 248, 99 Am. St. Rep. 119. matter. Kiplinger v. Kipl inger, 147 Fla. 243, 251,

This section' invests the courts with power to 2 So. (2d) 870. enforce such maintenance upon bill filed and suit The residen t ial prerequisites of one of the par-prosecuted as in other chancery cases. Id. ties as being essential to invoking -the jurisdic-

The suit authorized by this section is in the na- t ion of the court under this section is pure fic­ture of an equitable suit for specific performance tion, illogical, imaginary, not supported by any of the husband's marital duty to render his wife reasonable construction of the statute, and inter­support, the right to w!lich she has not lost or feres with rather than promotes the administra­forfeited. Preston v. Preston, 116 Fla. 246 , 250, tion of justice. Kiplinger v. Kiplinger, 147 Fla. 157 So. 197, 198 (con. op.). 243, 251, 2 So. (2d) 870. But see and compare,

She may be living with husband or apart Bursiel v. Bursiel, 124 Fla. 187, 168 So. 3; Hen­through his fault.-Under this section the right drie v. Hendrie, 118 Fla. 478, 159 So. 667; Pres­to apply for alimony without any reference what- ton v. Preston, 116 Fla. 246, 157 So. 197; Chaves ever to divorce is grant~d the wife. She may in v. Chaves, 79 Fla. 602, 84 So. 672; Warren v. this case be living with the husband. or apart Warren, 73 Fla. 764, 75 So. 35, L. R. A. 1917E, from him through his fault. Gill v. Gill, 107 Fla. 490; Donnelly v. Donn~lly, 39 Fla. 229, 22 So. 588, 590, 145 So. 758, 648; Miller v. Miller, 33 Fla. 453, 15 So. 222, 24

Maintenance of the wife while she is living apart L. R. A. 137; Wood v . Wood, 56 Fla. 882, 47 So. from her husband is allowable on condition that 560; Shrader v. Shrader, 36 Fla. 502, 18 So. 672; such living apart from him is through no fault of Cobb v. Cobb, 82 Fla. 287, 89 So. 869; Simon Y.

hers. Thompson v. Thompson, 86 Fla. 515, 98 Simon, 73 Fla. 919, 75 So. 35. So. 589. See also, Preston v. Preston, 116 Fla. Husband may interpose affirmative answer set-246, 250, 157 So. 197, 198 (con. op.). ting up adultery as grounds for divorce, although

A wife cannot quit her home at pleasure and not a citizen.--In a suit by wife for separate main­then .equitably or under this section require her tenance, under this and the foregoing section, de­husband to maintain her. In such case, when fendant husband, being properly before the court, she brings her suit for separate maintenance she may interpose and have the benefit of an affirm­is not entitled to an albwance for attorney's fees. ative answer setting up adultery as a ground for Thompson v. Thompson, 86 Fla. 515, 98 So. 589. divorce from the wife, even though the defend-

Bill properly· dismissed where the evidence ant is not a citizen of the state so as to entitle failed to establish the fact that the complaining him to institute and maintain under § 65 .02, an wife was living apart from her h~sband through original suit for divorce on such ground. Vilas v. his fault. Van v. Van, 100 Fla. 612, 614, 129 So. Vilas, 103 Fla. 1124, 138 So. 731. 886. Court may allow temporary alimony and suit

And it is not necessary for wife to make such money.-In a proceeding for maintenance where a case as would entitle her to divorce.-In a suit the marriage status is prima facie established by by a married woman for maintenance and contri- admission or proof, the court has the power to bution, it is not necessary for the complainant to require the husband to provide temporary alimony make such a case as would entitle her to divorce and suit money for the wife. Wood v. Wood, 56 from her husband under the statutory provisions Fla. 882, 47 So. 560; Cobb v. Cobb, 82 Fla. 287, of the state in order to obtain the relief sought. 89 So~ 869. As to alimony pendente lite gener-

' Cobb v. Cobb, 82 Fla. 287, 89 So. 869. ally, see note to § 65.07. But relation of husband and wife must be in Where the necessities of the wife and the facul-

force.-In order to support a suit for alimony and ties of the husband are established by the plead­maintenance, the relation of husband and wife ings it is not error for the judge to make an or­must be in force, but a void decree of divorce der for temporary alimony and coqnsel fees, with-. obtained by the husband works no change in out reference to a master. Holly v. Holly, 81 the marital status of the parties, and is no bar to Fla. 881, 89 So. 132, holding that wife's bill suf­the complainant's maintaining any action which · ficiently showed that she was living apart from the status of a wife enables her to maintain. her husband "through his fault," to authorize Shrader v. Shrader, 36 Fla. 502, 18 So. 672. the chancellor to grant her alimony pendente lite,

Requirement as to residence.-In a suit for and counsel fees. separate maintenance under the provisions of this The foundation of which is the fact of marriage. section where both the wife and the husband are -!he only foundation of an order for alimony, within the jurisdiction of the court and are per- smt money and counsel fees pendente lite is the sonally before the !=OUrt. 'the parties being tempo- fact of marriage betwe::!n the parties, and that rary residents of the state, a court of chancery relations should be made to appear at least prima has the power to make such orders as may be facie by proof or .admis~ion before a reference to necessary requiring the husband to contribute to a master is made. Chaves v. Chaves, 79 Fla. 602, the support and maintenance of his wife. Kip- 84 So. 672. linger v. Kiplinger, 147 Fla. 243, 244, 2 So. (2d) Such allowance is within sound discretion of 870. the court.-In a suit by a wife for separate main-

In Kiplinger v. Kiplinger, 147 Fla. 243, 252. 2 tenance an allowance for suit money is allowable So. (2d) 870, it was held that the evidence was not as a matter of strict right, but as a matter of

L 201 1

§ 65.11 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.14

sound discretion of the court. Thompson v. Thompson, 86 Fla. 515, 98 So. 589.

The writ ne exeat may be issued by equity courts in suits for maintenance, before a decree fixing an amount to be paid is rendered, in all cases where it seems to the chancellor just to is­sue it and a necessity therefor exists. Bronk v. State, 43 Fla. 461, 474, 31 So. 248, 99 Am. St. Rep. 119. See §§ 62.18, et seq.

Though § 65.11 may not of itself authorize the writ of ne exeat in proceedings under this sec­tion, yet if a proper case should be presented for the writ under general principles of law or other provisions of our statutes it should of course be awarded. Bronk v. State, 43 Fla. 461, 473, 31 So. 248, 99 Am. St. Rep. 119.

Allowance for wife's support as condition to husband's divorce.-Whcre during coverture the husband unjustifiably inflicted on wife permanent and substantial personal injuries, court, granting relief of divorce to husband for causes occasioned by wife's conduct toward him, should require hus­band to pay the equivalent of allowance of ali­mony for wife's support upon application made within this · section, as a condition precedent to husband's being granted a divorce. Gill v. Gill, 107 Fla. 588, 145 So. 758.

Sufficiency of evidence.-In husband's action wherein he obtained a divorce, evidence was in­sufficient to give wife an equitable interest in hus­band's property in which money of the wife was allegedly placed, but was sufficient to sustain award of permanent alimony to wife. Speier v. Speier, 137 Fla. 331, 333, 187 So. 764.

Evidence held sufficient to sustain decree de­nying maintenance unconnected with divorce. Chambers v. Chambers, 125 Fla. 359, 360, 169 So. 848.

Applied m Baptist v. Baptist, 130 Fla. 702, 178 So. 846.

Cited in Cohoe v. Cohoe, 110 Fla. 425, 149 So. 476; Hancock V ; Hancoc.k, 128 Fla. 684, 175 So. 734.

§ 65.11 HISTORY.

§ 13, Oct. 31, 1828; RGS 3198; CGL 4990.

ANNOTATION. Court may require defendant to post bond.­

The court may require the defendant in a divorce proceeding while he is within the jurisdiction of the court to post bond, not only that he will not depart the jurisdiction of the court without leave, but also that in any event he will comply with and abide by the lawful judgments, orders and de­crees of the court. American Surety Co. v. Ged­ney, 123 Fla. 703, 710, 167 So. 355.

alimony and certain costs. American Surety Co. v. Gedney, 123 Fla. 703, 167 So. 355.

This section does not deny the use of the writ of ne exeat in applications under § 65.10 nor is it restrictive of the writ to cases arising solely un­der §§ 65.08 and 65.09. Bronk v. State, 43 Fla. 461, 472, 31 So. 248, 99 Am. St. Rep. 119.

Permanent alimony as constituHng lien on hus­band's property.-This section appears to be a legislative construction to the effect that decrees for permanent alimony do not constitute a lien upon the property of the husband against whom such decree is rendered and to provide a specific method for reaching the property of the husband in cases where it is necessary to resort to a sub" jection of the property to enforce the compliance with the terms of the decree. Dickenson v. Sharpe, 94 Fla. 25, 30, 113 So. 638.

Proper enforcement of alimony decree.-Where payment of permanent alimony in installments was ordered under final decree of divorce, court could adjudicate alimony in arrears and render judgment therefor and order issuance of execu­tion. This holding comes within the broad in­tent of the last clause of this section. Gaffny v. Gaffny, 129 Fla. 172, 176 So. 68.

Quoted in Miller v. Miller, 33 Fla. 453, 15 .So. 222, 24 L. R. A. 137.

Stated in Frohock v. Frohock, 117 Fla. 603, 158 So. 106.

§ 65.12 HISTORY.

§ 1488 RS 1892; RGS 3199; CGL 4991.

§ 65.13 HISTORY.

§ 1, ch. 4973, 1901; § 10, ch. 7838, 1919; RGS 3200; CGL 4992.

ANNOTATION. This section is not confined in its operation to

public officers against whom writs of garnishment may be issued to enforce orders for suit m01'1ey or alimony. Reynolds v. Reynolds, 113 Fla. 361, 365, 152 So. 200.

This section was intended to apply to all per­sons of every class including public officers to whom money may be due for services or !abo~ and makes such moneys within limitations pre­scribed by the court's order in divorce cases or suits for alimony subject to garnishment. Id.

Nor is it confined to orders for alimony or suit money, because the words of this section ex­pressly extend its provisions to other orders or decrees than orders for the payment of alimony or suit money. Reynolds v. Reynolds, 113 Fla. 361, 367, 152 So. 200.

When a defendant husband in a divorce suit in § 65.14 which he is held under writ of ne exeat applies HISTORY. for leave to depart the jurisdiction, the court may § 7, Oct. 31, 1828; RGS 3201 ; CGL 4993. require of defendant such bonds payable to com- ANNOTATION. plainant as would secure payment of the wife's Court may make such orders as welfare of child alimony to her. Id. requires.-The trial court in the exercise of its

Recovery thereon by complainimt.-Where in sound discretion, has jurisdiction to make such divorce proceedings defendant husband was re- order or decree as the welfare of the child should quired to give bond that he would comply with require and may reqqire from time to time. all lawful orders and decrees of the court, wife Mooty v. Mooty, 131 Fla. 151, 161, 179 So. 155. could recover on bond where husband failed to The ultimate test as to the custody is the spir­comply with order requiring payment of back itual and moral well being of the child, with these

[292]_

§ 65.15 DIVORCE, ALIMONY AND CUSTODY OF CHILDREN § 65.15

factors in mind, the chancellor may award it to the father, the mother, or a stranger to the blood as the circumstances require or he may make an award to both parents. The father has no right superior to the mother. Randolph v. Randolph, 146 Fla. 491, 495, 1 So. (2d) 480. See, McGill v. McGill, 19 Fla. 341.

Court may require defendant to post bond.­The court may require the defendant in a divorce proceeding while he is within the jurisdiction of

, the court to post bond, not only that he will not depart the jurisdiction of the court without leave, but also that in any event he will comply with and abide by the lawful judgments, orders and decrees of the ·court. American Surety Co. v. Gedney, i23 Fla. 703, 710, 167 So. 355.

When a defendant husband in a divorce suit in which he is held under writ of ne exeat applies for leave to depart the jurisdiction, the court has power and authority to require the defendant to give such security, in the way of bond or other­wise, that the court might determine to be proper, equitable and just to secure the performance of the orders of the court touching the custody and maintenance of the children of the marriage in­volved. Id.

Retention of jurisdiction to adjudicate question of custody.-Where question regarding the cus­tody of a child had been questioned in a divorce suit the chancellor had the right to · reta in juris­diction for the purpose of adjudicating. that ques­tion and complainant was not entitled to dismiss suit without prejudice. Duke v. Duke, 109 Fla. 325, 326, .147 So. 588.

Authority to modify decree as to affect past due installments for support of child.-In Pottinger v. Pottinger, 133 Fla. 442, 446, 1.82 So. 762, it was held that the lower court was without authority to modify an 'original decree of divorce as to af­fect past due installments due from husband for support of child, as against husband's contentions that installments did not become vested rights because of this section. See note to § 65.15.

rendered a decree for the past due installments and denied husband's prayer for modification of the a limony decree as to payments in default and appointed a special master to take testimony on the issue as to whether relief should be allowed as to future payments, such action by the court was held proper. Van Loon v.. Van Loon, 132 Fla. 535, 542, 182 So. 205.

The provisions of this act cannot be availed of except by affirmative action on the part of the party interested. Hagen v. Viney, 124 Fla. 747, 754, 169 So. 391.

Where neither party had taken any affirmative action to avai l himself of the privilege of this act and the questions were not raised and adjudicated by the trial court, any expression as to the .ef­fect or validity of it by the supreme court would be premature. Id.

Petitioner must substantially comply with this section.-The petitioner filing a petition for mod­ification of a final divorce decree must substan­tially comply with this section and may only pro­ceed with the cause after service of process on the respondent, or after the voluntary . appearance of the respondent. Norten v. Norten, 131 Fla. 219, 227, 179 So. 414.

And jurisdictional prerequisites must appear from allegations of petition.-This section pre­·scribes certain jurisdictional prerequisites and the existence of these prerequisites must appear af­firmatively from the allegations of the petititon. They are: (1) petition may be filed in the circuit court of the circuit in which the parties, or either

·of them, shall have resided at the date of the ex­ecution of a property settlement agreement; or (2) in any circuit where either party may reside at the date of such application or in which agree­ment for property settlement or alimony shall have been executed; or (3) in any circuit court in which any husband has, pursuant to the decree of any court of competent jurisdiction been re­quired to make to his wife any payments for, or in lieu of, separate support, maintenance or ali-

Stated in Minick v. Minick, 111 Fla. 469, So. 483-; State v. Harrison, 133 Fla. 169, 183

149 mony. Norton v. Norton, 131 Fla. 219, 227, 179 So. So. 414.

464. Cited in Kennard v.

So. 660 (dis. op.).

Where petition for modification of divorce .de­Kennard, 131 Fla. 473, 179 cree was filed in the same jurisdiction in which

the decree of divorce was entered, such circuit

§ 65.15 court had jurisdiction to entertain the petition and to issue ptocess thereon, although the petition

HISTORY. did not show that either party resided in that ju-§§ 1, 2, ch. 16780, 1935; CGL 4993(1). risdiction, and showed that property settlement

ANNOTAT~ON. adopted by decree was executed in New York. Id. This section operates prospectively to authorize Court granting divorce decree awarding wife

modifications of alimony decrees as to future stated weekly payments until trust was estab­payments from the date of application, to the ex- lished by husband for support and maintenance tent authorized by valid provisions in the statute, of the wife and children, and providing 'for re­eveii though the court had not expressly reserved tention of jurisdiction to compel performance of the authority to change or modify a decree when decree, held, under the provisions of this section, it was rendered. Van Loon v. Van Loon, 132 to have jurisdiction to make further orders as to Fla. 535, 542, 182 So. 205. alimony upon husband's petition alleging remar-

And is not applicable to past due installments riage of wife and husband's change of financial of alimony under a valid judicial decree that re- condition rendering performance of decree im­mained unpaid and such sums constitute vested possible. State v. Harrison, 133 Fla. 169, 183 property rights of which the party cannot be de- So. 464. prived except by due process of law. Pottinger Proceeding for modification is not a step in "'· Pottinger, 133 Fla. 442, 446, 182 So. 762. original divorce proceeding.-That proceeding for

Where in wife's action to recover past due in- modification under this section was never in­stallments of alimony under decree of divorce tended to be or constitute a step in the original rendered prior to pa~sage of this section, the court proceeding for divorce, is clearly apparent, be-

[ 293 l

§ 66.01 CHANCERY JURISDICTION OVER PROPERTY § 66.01

cause the statute provides that it may be insti­tuted in a jurisdiction in which the divorce suit was not prosecuted. Norton v. Norton, 131 Fla. 219, 227, 179 So. 414.

Court has power, both under its decree grant­ing divorce and retaining jurisdiction with refer­ence to the matter of alimony, and under this sec­tion, to modify provision with reference to the payment of alimony if the circumstances :of the parties or the financial ability of the husband should have so changed since the rendition of such decree as to justify such modification, after ex­piration of six months allowed for appeal. Gaffny v. Gaffny, 129 Fla. 172, 175, 176 So. 68.

But is the commencement of a m:w suit.-The filing of a petition for modification of a final di­vorce decree wherein jurisdiction was not retained for any purpose was the commencement of a new suit which could only be maintained by rea­son of the provisions of this section, which pro­ceeding is somewhat analogous to a suit by bill of review. Norton v. Norton, 131 Fla. 219, 227, 179 So. 414.

Court may not punish for contempt a noncom­pliance with orders of another court.-This sec­tion does not confer jurisdiction upon one cir­cuit court to punish for contempt a failure to com­ply with the orders and decrees of another cir­cuit court. State v. Thomas, 128 Fla. 231, 236, 174 So. 413.

Thus, a circuit court which has made no or­der either increasing or decreasing the amount of separate maintenance and support, decreed to be paid by another court, was not authorized to punish for contempt a failure to comply with such decree. Id.

Compliance w'ith decree as condition precedent to modification.-Petitioner for modification un­der this section held not entitled to maintain ac­tion until he had fully complied with terms of decree sought to be modified. Selige v. Selige, 138 Fla. 783, 190 So. 251.

Extravagance of divorced wife not grounds for relief.-The extravagance of the divorced wife will not afford the husband grounds for relief from the alimony decree. Phillippi v. Phillippi, . 148 Fla. 3!l3 , 396, 4 So. (2d) 465.

lieu of her right to participate in her husband's property, it will take a very strong case even in view of this section to modify it. Vance v. Vance, 143 Fla. 513, 517, 197 So. 128.

When there is is no property settlement or other impediment in the way, the remarriage of a divorced wife will generally relieve the former husband from the payment of alimony but where a property settlement was in good faith entered into by the parties and it is shown that it was i11tended as a release of all claims of each against the other, including that for alimony and one or both the parties have acted in reliance on the pro­visions of the property settlement, it should not be disturbed merely because one of the parties remarried. Id. ·

Wife estopped from requiring husband to pay additional sum.-Where wife received money and property pursuant to property agreement which was adopted by final decree of divorce and used the same in such manner as she saw fit, she was estopped from maintaining proceeding to re­quire the husband to pay over to her additional sums of money. Norton v. Norton, 131 Fla. 219, 228, 179 So. 414.

Modification held authorized.-Order modify­ing final divorce decree by relieving husband from paying alimony for support of child after she became 21 and further modifying decree as to amount husband should pay for support of other child, held authorized. Kennard v. Ken­nard, 131 Fla. 473, 179 So. 660. ·

Modification held unauthorized.-Petition for modification of final divorce decree held to allege insufficient facts to warrant granting of the relief prayed. Norton v. Nor ton, 131 ·Fla. 219, 229, 179 So. 414.

Cited in ~elds v. Fields, 140 Fla. 269, 191 So. 512; Johnson v. Johnson, 128 Fla. 666, 175 So. 234.

CHAPTER 66.

Chancery Jurisdiction over Property,

§ 66.01 HISTORY.

§ 1, Mar. 14, 1844; RGS 3202; CGL 4994. Allegations that divorced wife was living in extravagance, plays roulette and squanders her money in gambling, held not to entitle husband ANNOTATION. to maintain bill under this section to reduce ali- The practice in a partition suit is more or less mony. Id. statutory. Camp Phosphate Co. v. Anderson, 48

Nor is the remarriage of a divorced husband Fla. 226, 37 So. 722, 111 Am. St. Rep. 77. The cause to reduce a decree of alimony to his for- legislature, as far back as 1844, adopted a rather mer wife, Phillippi v. Phillippi, 148 Fla. 393, 4 comprehensive statute on the subject, which, with So. (2d) 465. a few minor changes, subsequently appeared as

Property settlement agreements made a part of §§ 3202 to 3209, Revised General Statutes (§§ a divorce decree are covered by this section and 4994-5001, Compiled General Laws of Florida), may be modified in the manner provided. Vance from which §§ 66.01-&6.09 are derived. Lovett v. v. Vance, 143 Fla. 513, 516, 197 So. 128. But as Lovett, 93 Fla. 611, 637, 112 So. 768. See de Cline to property settlement fully performed, see Dix v. Cline, 101 Fla. 488, 492, 134 So. 546. v. Dix, 140 Fla. 91, 191 So. 205. Such partition suit is not the proper proceeding

This section declares the policy of this state in which to settle a di~puted title. Dallam v. San­with reference to modifying property settlement chez, 56 Fla. 779, 47 So. 871, cited in Williams v. agreements or decrees affecting such settlements. Ricou, 143 Fla. 360, 368, 196 So. 66.7. Vance v. Vance, 143 Fla. 513, 515, 197 So. 128. The statutory proceeding for partition may not

But it takes a strong case to modify settlement be used as a substitute for the action ' of ejectment in lieu of right to participate in husband's prop- · to try the title to lands, or used merely for the erty.-When a property settlement provides for purpose of establishing rights or title. Lockwood an agreed sum or sums to be paid the wife in v. Walker, 127 Fla. 20, 27, 172 So. 359; Camp

[ 294 1

§ 68.02 CHANCERY JURISDICTION OVER PROPERTY § 66.03

Phosphate Co. v. Anderson, 48 Fla. 225, 245, :17 So. 722, 111 Am. St. Rep. 77. See annotation to § 66.05.

A proceeding for the partition of land under the statute was not intended as a substitute for or equivalent of an action of ejectment, or to be us ed for the sole purpose of testing a legal title. Rivas v. Summers, 33 Fla. 539, 15 So. 319; Dallam v. Sanchez, 56 Fla. 779, 47 So. 871.

But assertion of adverse title will not deprive court of jurisdiction.-When the bona fide ohje~t of a case is the partition of lands between com­mon owners, the court will not permit the asser­tion of an adverse title, on the part of defendant or defendants, in itself to deprive the court of jurisdiction to hear the cause and determine the rights and interests of the parties. de Cline v. Cline, 101 Fla. 488, 134 So. 546. See Camp Phos­phate Co. v. Anderson, 48 Fla. 226, 37 So. 722, 111 Am. St. Rep. 77.

Applied in Monroe v. Birdsey, 102 Fla. 544, 136 So. 886.

Quoted in Beverette v. Graham, 101 Fla. 563, 132 So. 826; Langford v. Brickell, 103 Fla. 672,

stedt, 141 Fla. 266, 281, 193 So. 54, 126 A. L. R. 1001.

The holding of legal title is not essential to the right to maintain partition under this section, but partition may be maintained by cestui que trust where the trustee holds only the naked trust. Id.

In Hobbs v. Frazier, 56 Fla. 796, 47 So. 929, 131 Am. St. Rep. 179, 20 L. R. A. (N. S.) 105, it was said: "The joint tenants, tenants in com­mon and coparceners contemplated by the stat­ute are those who are in some way the owners of a beneficial estate in the land, or whose status and duties are of such a nature as require the ex­ercise of the right to compel partition by judicial proceedings." Elvins v. Seestedt, 141 Fla. 266, 281, 193 So. 54, 126 A. L . 'R. 1001. See Lockwood

•v. Walkh, 127 Fla. 20, 2·6, 172 So. 359. It has been held that partition will not lie

agaimt defendants who hold an equitable interest in the land. Langford v. Wauchula State Bank, 148 Fla. 236, 238, 4 So. (2d) 10, citing Camp Phos­phate Co. v·. Anderson, 48 Fla. 226, 37 So. 722, 111 Am. St. Rep. 77; Lovett v. Lovett, 93 Fla. 611, 112 So. 768.

Thus partition will not lie against mortgagee 681, 138 So. 75 (dis. op.). · Cited in Baltzell v. Daniel, 111

639, 93A. L. R. 1259.

§ 66.02

Fla. 303, 149 So. holding vouchers given in settlement of fire in­surance policy on mortgaged property because the mortgagee had only a lien to the money. Langford v. Wauchula State Bank. 148 Fla. 236.

HISTORY. § 1, Mar. 14, 1844; RGS 3203; CGL 4995.

ANNOTATION. Cited in de Cline v. Cline, 101 Fla. 488, 492, 134

So. 546; Camp Phosphate Co. v. Anderson, 48 Fla. 22·6, 242, 37 So. 722, 111 Am. St. Rep. 77.

238, 4 So. (2d) 10. , Necessary and indispens:1ble parties must be

joined.-The statute requires all cotenants or co­parceners to be made parties to the suit if known. de Cline v. Cline, 101 Fla. 488, 492, 134 So. 546, citing Camp Phosphate Co. v. Anderson, 48 Fla. 226, 247 37 So. 722, 111 Am. St. Rep. 77; Lovett

§ 66.03 v. Lovett, 93 Fla. 611, 648, 112 So. 768; Yager v. HISTORY. North, etc., River Phosphate Co., 82 Fla. 38, 8·9

§ 2, Mar. 14, 1844; RGS 3204; CGL 4096. So. 340. In a suit for partition of lands the persons

ANNOTATION. named as defendants, who are alleged to have The statute authorizes partition only among interests or c;ertain proportionate shares in and

those who have title to the land. Dallam v. San- to the property sought to be partitioned, are ne­chez, 56 Fla. 779, 47 So. 871; de Cline v. Cline, cessary parties and in an appeal taken from an 101 Fla. 488, 492, 134 So. 546. order dismissing the bill they should be named as

"In the cases of Murrell v. Peterson, 57 Fla. parties to the appeal. Gaskins v. Mack, 91 Fla. 480, 49 So. 31; Williams v. St. Petersburg, 57 284, 107 So. 918. Fla. 544, 48 So. 754; Dallam v. Sanchez, 56 Fla. Otherwize their rights cannot be adjudicated.-779, 47 So. 871, it was held that where, in a par- In suits for partition, the rights and interests of titian proceeding it appeared that complainan t necessary and indispensable parties cannot be ad­had no title to the lands sought to be partitioned, judicated when they are not properly before the the bill should be dismissed, even though the court, nor can their title be divested or destroyed complainant might have an equitable interest in by a decree rendered therein unless they are made the ·Jand which might be enforced in proper pro- parties thereto. de Cline v. Cline, 101 Fla. 488, 134 ceedings." Williams v. Rico1,1, 143 Fla. 360, 368, So. 546. See Camp Phosphate Co. v. Anderson, 48 196 So. 667. Fla. 226, 37 So. 722, 111 Am. St. Rep. 77, cited in

Plaintiff had no .right to maintain a bill of com- Lovett v. Lovett, 93 Fla. 611, 649, 112 So. 768. plaint for partition because of disputed title, or An administrator cannot have partition.-While lack of sufficient title, where in the bill she ad- an administrator may maintain an action of eject­mitted that she signed a paper with her husband, ment upon the title of the intestate to recover Ricou, transferring his undivided interest in the possession, yet not being an owner, joint tenant, real estate involved but alleged that she had not tenant in common or coparcener, within the mean­intended to convey her interest in such property, ing of this section, he cannot have partition. that the instrument was given as security for a Whitlock v. Willard, Hi Fla. 156. See also, Ter­loan, that she did not properly execute the instru- rei! v. Weymouth, 32 Fla. 255, 13 So. 429, 37 Am. ment and that the conveyance was void. Id. St. Rep. 94. ·

But partition may be maintained by the owner Where it is not shown that by the will the of a beneficial estate against a joint tenant, a ten- executors are invested with and authorized to ant in common or a coparcener. Elvins v. See- represent the title, they are not proper parties to

[ 295]

•

§ 66.04 CHANCERY JURISDICTION OVER PROPERTY § 66.04

represent the heir or devisee in partition pro­ceedings. Lyon v. Register, 36 Fla. 273, 18 So. 589; Nelson v. Haisley, 39 Fla. 145, 22 So. 265.

Even though such suit was originally instituted by his intestate. Greeley v. Hendricks, 23 Fla. 366, 2 So. 620.

And upon death of cotenant pending partition, heirs or devisees must be made parties defendant. -In case of the death of a cotenant, his or her heirs or devisees become cotenants with the other joint owners, and, where such death happens dur­ing the pendency of partition, it is necessary that the heirs or devisees be made parties defendant before proceeding with the partition. Lyon v. Register, 36 Fla. 273, 18 So. 589; Nelson v. Hai s­ley, 39 Fla. 145, 22 So. 265.

A trustee in bankruptcy having legal title with no beneficial interest in undivided property and no duties with reference to the undivided property requiring partition for the benefit of a cestui que trust is not in general such a tenant in common as to authorize him to sue for partition. Hobbs v. Frazier, 56 Fla. 796, 47 So. 929, 131 Am. St. Rep. 179, 20 L. R. A. (N. S.) 105.

"A widow who has a dower interest in real es­tate of which her husband died seized and pos­sessed is not a joint tenant, tenant in common nor in coparcenary with the children of deceased. The statute gives her the privilege of taking a child's part, in which case she is counted as a child and takes an interest in fee. She becomes in such cases a tenant in coparcenary with the children of her husband. See Benedict v. Wil­marth, 46 Fla. 535, 35 So. 84." Serkissian v. New­man, 85 Fla. 388, 393, 96 So. 378.

Parties held tenants in common under this sec­tion. Lockwood v. Walker, 127 Fla. 20, 26, 172 So. 359.

is not invoked in the manner required by statute_, and the partition suit is not legally before the court. In such case, the bill is insufficient to en­able the clerk to make an order of publication which will be binding upon nonresident defend­ants who fail to appear generally in the cause. Beverette v. Graham, 101 Fla. 563, 132 So. 826.

The bill should show the respective interests of the parties. Milton v. Milton, 62 Fla. 564, 56 So. 947.

Allegations held sufficient to meet the test that the statutes do not contemplate that partition may be enforced except when required by the demands or the interests of a beneficial owner or when shown to be necessary to protect the rights of those beneficially interested. Lockwood v. Wal­ker, 127 Fla. 20, 26, 172 So. 359, citing Hobbs v. Frazier, 56 Fla. 796, 47 So. 929, 131 Am. St. Rep. 179, 20 L. R. A. (N. S.) 105.

An allegation in a bill for partition that "ac­cording to the best knowledge and belief of your orator the name and place of residence of," a de­fendant named in the bill as a corporation, "is as follows: Camp Phosphate Company, which is a Florida corporation," is a sufficient compliance with this section. Camp Phosphate Co. v. Ander­son, 48 Fla. 226, 37 So. 722, 111 Am. St. Rep. 77.

A bill of partition alleging that the land was conveyed by patent from the United States to a named person, that such person subsequently died leaving certain named heirs at law who in­herited the property, that certain of those heirs conveyed th eir interests to complainant, and oth­ers conveyed their interests to the defendant, that complainant and defendant are in possession of several portions of th e land, claiming title from the heirs, and which sets forth the quantity or proportionate shares held by the complainant

Quoted in Langford v. Brickell, 103 Fla. 672, and the defendant, and facts from which the court can see as a matter of law that the parties

Fla. 285, 28-9, are tenants in common, states a case entitling com­681, 138 So. 75 (dis op.).

Stated in Blocker v. Blocker, 103 137 So. 249.

Cited in McClanahan v. Mayne, 103 Fla. 600, 603, 138 So. 36; Commodores Point Terminal Co. v. Hudnall, 283 F. 150, 163.

plainant to partition. Id. Allegations held to show that parties were ten­

ants in common under this section. Lockwood v. Walker, 127 Fla. 20, 26, 172 So. 359.

Bill held to substantially comply with this sec­tion. Crawford v. Crawford, 129 Fla. 746, 755, 176 So. 838; Lindsley v. Mel ver, 51 Fla. 463, 40 § 2, Mar. 14, 1844; RGS 3205; CGL 4997. So. 619. (dis. op.)

HISTORY. § 66.04

ANNOTATION. Allegations of bill held sufficiently clear to en-Generally the only proper way to bring lands able court to adjudicate fully rights and interests

before the court for partition is by the bill, and a of the parties and quantity and proportionate share cross-bill is neither necessary nor proper. Lov- held by each. Szabo v. Speckman, 73 Fla. 374, ett v. Lovett, 93 Fla. 611, 637, 112 So. 768, citing 74 So. 411, L. R. A. 1917D, 357. Koon v. Koon, 55 Fla. 834, 841, 46 So. 633. Multifarious,ness.-A bill for partition is not nee-

And additional lands should be brought in by essarily multifarious because there may be united amendment.-If any defendant has the right to in it several causes of action, if they grow out have any additional lands brought in for partition of the same transaction and all the defenda nts in the same action, the proper practice is to have are interested in the same rights, even although the court require the complainant to amend his the subject matter of the controversy may be in­bill so as to embrace such additional lands. But cumbered with conflicting claims. Szabo v. a departure from this procedure may be waived Speckman, 73 . Fla. 374, 74 So. 411, L . R. A. by the parties as where defendant brings in ad- 1917D, 357. ditional lands by way of counterclaim in his an- Applied in Elvins v. Seestedt, 148 Fla. 408, 4 So. swer. Lovett v. Lovett, 93 Fla. 611, 638, 112 So. (2d) 532. 768. Cited in National Container Corp. v. State, 138

Where the bill is not sworn to by the complain- Fla. 32, 57, 189 So. 4, 122 A. L. R. 1000; McClana­ant but" by his solicitor the jurisdiction of the court han v. Mayne, 103 Fla. 600, 603, 138 So. 36; de

[ 296]

•

§ 66.05 CHANCERY JURISDICTION OVER PROPERTY § 66.06

Cline v. Cline, 101 Fla. 488, 492, 134 So. 546; Gas­kins v. Mack, 91 Fla. 284, 288, 107 So. 918.

§ 66.05 HISTORY.

§ 4, Mar. 14, 1844 ; RGS 3206; CGL 4998.

ANNOTATION. All rights and interests of parties are to be ad­

judicated.- Statutes governing the conduct of partition suits clearly contemplate that when such suits are instituted, all questions of the right and interest of the parties to the res whether realty or personal property or both shall be finally set­tled and adjudicated. Barber v. Barber, 128 Fla. 645, 647, 175 So. 713.

As the court acquired 'jurisdiction to adjudicate partition, it follows that the court had jurisdiction to proceed to ascertain and adjudicate the rights and interests of the parties as authorized by the statute (Christopher v. Mungen, 61 Fla. 513, 55 So. 273), and also determine as incidental to the main relief ~uch questions of right as may have arisen out of the relations existing between the complainant and defendant at the time the inci­dents occurred giving rise to differences between them. Farrel v. Forest Inv. Co., 73 Fla. 191, 74 So. 216, 1 A. L. R. 25; Lockwood v. Walker, 127 Fla. 20, 26, 172 So. 359.

A suit for partition cannot be used as a sub­stitute for the action of ejectment, nor for the sole purpose of testing the legal title to land, yet when a suit for partition is properly brought all controversies between the parties as to the legal title will be settled by the chancellor. Gracy v. Fielding, 71 Fla. 1, 70 So. 625.

Such as legal title and right of possession.­Where the bona fide object of a suit is the par­tition of lands between the common owners there­or; some of whom are complainants and the others ar·e defendants, and some of the parties to the suit are in actual or constructive possession of the lands, then all controversies between the par­ties as to the legal title and right of possession may and should be settled by the court, as au·­thorized by the statute, even though some of the joint owners claim adversely under a legal title, or dispute the title or right of the others to pos­session. And the statute authorizing this to be done in partition proceedings is not violative of the constitutional right to a jury trial. Lock­wood v. Walker, 127 Fla. 20, 27, 172 So. 359; T erra Ceia Estates v. Taylor, 68 Fla. 261, 67 So. 169. See Camp Phosphate Co. v. Anderson, 48 Fla. 226, 245, 37 So. 722, 111 Am. St. Rep. 77; Williams v. Clyatt, 53 Fla. 987, 43 So. 441; Dallam v. Sanchez, 56 Fla. 779, 47 So. 871; Griffith v. Griffith, 59 Fla. 512, 52 So. 609; 138 Am. St. Rep. 138; Christopher v. Mungen, 61 Fla. 513, 55 So. 273; Koon v. Koon, 55 Fla. 834, 46 So. 633.

The constitutional right to a jury trial is not violated.-This section authorizing the court to proceed to adjudicate the rights of the parties in partition proceedings is not violative of the constitutional right of a jury trial. . Christopher v. Mungen, 61 Fla. 513, 55 So. 273.

right to a jury trial in the cases therein provided for. Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722, 111 Am. St. Rep. 77.

"Equity can in a proper case in one suit decree partition of undivided estates, take an accounting, cancel fraudulent conveyances and determine an­tagonistic claims to the subject matter. Such a proper case is one in which all of these forms of relief, are a necessary part to the granting of com­plete relief in the partition suit. They are all closely related, a part of the sa.rne subject matter. However, one cannot J O!ll together unrelated causes of action which are separate and distinct in themselves." Williams v. Ricou, 143 Fla. 360, 365, 196 So. 667.

Decree of partition should not be made until the defendants shall have answered or decree pro con­fesso has been regularly entered. Street v. Ben­ner, 20 Fla. 700 ; Benner v. Street, 32 Fla. 274, 13 So. 407; Ropes v. McCabe, 40 Fla. 388, 25 So. 273.

Decree may preclude afterborn contingent re­maindermen.-A court of equity may in proper cases decree partition of lands and preclude after­born contingent remaindermen from asserting an interest therein. Blocker v. Blocker, 103 Fla. 285, 292, 137 So. 249.

A decree pro confesso goes only to the form and content of the bill in the partition suit, and in no way affects the preparation and filing of the commissioners' report, entering exceptions there­to and final decree based thereon. Monroe v. Birdsey, 102 Fla. 544, 136 So. 886,

Cited in de Cline v. Cline, 101 Fla. 488, 492, 134 So. 546; Camp Phosphate Co. v. Anderson, 48 Fla. 226, 242, 37 So. 722, 111 Am. St. Rep. 77.

§ 66.06 HISTORY.

§§ 5-8, Mar. 14, 1844; RGS 3207; CGL 4999.

ANNOTATION. Effect of decree pro confesso.-"The prepara­

tion and filing of the commissioners' report and entering exceptions thereto and final decree based thereon are new and independent steps in the cause and are in ·no way affected by the decree pro confesso. In fact the filing of the commis­sioners' report is the first and only opportunity given those aggrieved thereby to offer objections thereto and to hold that the entry of the decree pro confesso cuts off this right might be tanta­mount to depriving the one objecting, of his prop­erty without due process in those cases where er­ror or harmful inequalities exist in the report and in the decree based on the report." Monroe v. Birdsey, 102 Fla. 544, 547, 136 'So. 886.

Entry of final decree before expiration of time for filing exceptions.-This section provides that nonresident parties may have thirty days within which to file their exceptions or objections to the commissioners' report. And a final decree in a partition suit entered January 2, predicated on a commissioners' report dated December 5 pre­ceding will be reversed when it does not fully ap­pear that the chancellor gave due consideration to a motion to vacate and petition for rehearing both being well grounded. Monroe v. Birdsey,

The statute relating to partition having been 102 Fla. 544, 136 So. 886. enacted in 1844, before the first constitution was 'Cited in Barber v. Barber, 128 Fla. 645, 175 So. adopted, is valid though it deprives parties of the 713; de Cline v. Cline, 101 Fla. 488, 492, 134 So.

[ 297]

§ 66.07 CHANCERY JURISDICTION OVER PROPERTY § GG.Hl

546; Camp Phosphate Co. v. Anderson, 48 Fla. 226, 242, 37 So. 722, 111 Am. St. Rep. 77.

§ 66.07 HISTORY.

§§ 8-10, .Mar. 14, 1844; RGS 3208; CGL 5000.

ANNOTATION. Under the statutes as construed in Camp Phos­

phate Co. v. Anderson, 48 Fla. 226, 37 So. 722. 11 Am. St. Rep. 77, a11d de Cline v. Cline, 101 Fla. 488, 134 So. 546, a doubt may well arise as to the right of a court of chancery, in a partition pro­ceeding, after a final decree and sale of the ~rop­erty, upon an undivided interest in which there exists a valid lien, and the lienholder was not a party to the suit, to decree, at the instance of the complainant and without the consent of both the lienholder and the cotenant against whom the lien is held, that the lien be satisfied out of the distributive share of such cotenant in the proceeds of the sale of the property. McClanahan v. Mayne, 103 Fla. 600, 603, 138 So. 36.

Cited in Barber v. Barber, 128 Fla. 645, 175 So. 713; Blocker v. Blocker, 103 Fla. 285, 290, 137 So. 249.

HISTORY. § 11, Mar. 14,

3209; CGL 5001.

ANNOTATION.

§ 66.08

1844; § 1, ch. 4545, 1897; RGS

It is the duty of the Court to carry out the pur­pose and intent of the statute relating to costs. -Lovett v. Lovett, 105 Fla. 302, 305, 141 So. 150.

aggregate of the lands included in the suit. He then proceeded with the same formula as to each of the parties to the suit and converted the frac­tions thus obtained to decimals and required each party to contdbute to the costs upon that basis. This was held improper. Id.

This section does not authorize the allowance of attotney's fees to a complainant, who, though an attorney at law, conducts the proceedings in person, and is not represented by an attorney. Girtman v. Starbuck, 48 Fla. 265, 37 So. 731.

Applied in Glass v. Layton, 121 Fla. 462, 164 So. 284; Glass v. Layton, 140 Fla. 522, 192 So. 330; Christopher v. Mungen, 66 Fla. 467, 63 So. 923.

Stated in Monroe v. Birdsey, 102 Fla. 544, 136 So. 886, holding solicitor's fee excessive.

Cited in Barber v. Barber, 128 Fla. 645, 175 So. 713; de Cline v. Cline, 101 Fla. 4.88, 134 So. 546; Camp Phosphate Co. v. Anderson, 48 Fla. 226, 242, 37 So. 722, 111 Am. Sf. Rep. 77.

§ 66.09 HISTORY.

§ 1498 RS 1892; RGS 3210; CGL 5002.

ANNOTATION. This section merely extends the procedure for

partition of realty to personal property. It means that the procedure as to personal property shall be the same as to real property insofar as plain­tiff is required to allege and prove joint tenancy, tenants in common or co-parceners. Langford v. Wauchula State Bank, 148 Fla. 236, 238, 4 So. (2d) 10.

Partition will not lie against mortgagee hold­ing vouchers given in · settlement of fire insurance policy on mortgaged property because the mort­gagee had only a lien to the money. Langford v. Wauchula State Bank, 148 Fla. 236, 238, 4 So. (2d) 10.

Cited in Barber v. Barber, 128 Fla. 645, 175 So. 713; de Cline v. Cline, 101 Fla. 488, 492, 134 So. 546; Camp Phosphate Co. v. Anderson, 48 Fla. 226, 242, 37 So. 722, 11.1 Am. St. Rep. 77.

§ 66.10

It must ascertain the relative interests of the parties and apportion the costs accordingly. This may be done by first ascertaining, where there are two or more parcels of land involved, the relative value of each tract of land. This may be ascertained either by stipulation between the parties or by evidence introduced before the court from persons acquainted with such property val­ues in that location. When the relative value of each parcel of property has been ascertained then necessarily the aggregate value would be ascer-tained and the value which each piece of prop- HISTORY. erty bears to the aggregate value will be ascer- § 1, ch. 3884, 1889; RGS 3212; CGL 5004. tained. For instance, if there are 3 parcels of ANNOTATION. land to be partitioned and it is ascertained that Constitutionality.-This section should be en­A owns ~ of tract one and )13 of tract two and forced so far only as it can be consistently with 1/7 of tract three and it is ascertained that tract the limitations of the constitution, but it is un­one constitutes 60% of :he total value; tract two constitutional and without force or effect in so 25% of the total value and tract three 15% of the far as it undertakes or has the effect of convert­total value; then A must contribute ~ of 60% ing the remedy at law by · ejectment into an ac­of the costs, plus )13 of 25% of the costs, plus 1/7 tion cognizable in equity. Where · the remedy of 15% of the costs and in this way each of the at law by ejectment is clear and adequate. then parties will contribute to the payment of costs in this section can not, constitutionally, put such a proportion to their respective interests as directed case into equity, and thereby deprive the de­by the court. Lovett v. Lovett, 105 Fla. 302, 305, fendant of his common law right of a trial 141 So. 150. thereof by jury. Trustees v. Gleason, 39 Fla.

In a partition suit there were two tracts of land 771, 23 So. 539. See also, Hughes v. Hannah, involved which \\" ere partitioned between the par- 39 Fla. 365. 22 So. 613. ties. In determining the proportions of the costs If defendants are in possession, they have a to be assessed the chancellor took the fractional right to a jury trial and the remedy at law is interest of one of the parties in tract one and adequate. Beccaise v. Beccaise, 65 Fla. 441, · 62 the fractional interest of such party in tract two So. 20.9. and reduced those fractions to a common denom- Applied in Commodores Point Terminal Co: v. inator and then divided the result by two to as- Hudna"ll, 283 F. 150. certain the average interest of such party in the Cited in Sanford v. Dial, 104 Fla. 1, 14, 142 So.

[ 298]

§ 66.11 CHANCERY JURISDICTION OVER PROPERTY § 66.11

233; Carol Gables Properties v. Stepler, 115 Fla. So. 448. See Rabinowitz v. Houk, 100 Fla. 44, 231, 241, 155 So. 799 (dis. op.); Weston v. Moody, 49, 129 So. 501. And see annotation to § 66.17. 37 Fla. 473, 19 So. 880. Void instruments may be cancelled.-Equity

§ 66.11 HISTORY.

§ 1, ch. 4739, 1899; 3213; CGL 5005.

will not ordinarily intervene to cancel and declare void a contract which is not merely voidable but is null and void. Some courts, in cases to remove

§ 1, ch. 10223, 1925; RGS clouds, have made an exception to this rule in the

ANNOTATION. I. Generally.

II. Title and Possession. A. Title. B. Possession.

I. GENERALLY. This section was intended to enlarge the juris­

diction of courts of chancery. Johnson v. Baker, 73 Fla. 6, 74 So. 210; Briles v. Bradford, 54 Fla. 501, 44 So. 937.

It prescribes conditions under which suits may be brought to quiet title or remove clouds. Cre­men v. Quigley. 104 Fla. 133, 137, 139 So. 383.

And such suits must be legally pred'cated. Cre­men v. Quigley, 104 Fla. 133, 137, 13!1 So. 383, wherein complainant did not bring himself within the terms of the statute.

The nature of the remedy is not changed by this section. Clark v. Johnson, 91 Fla. 485, 489, 107 So. 636; Brecht v. Bur-Ne Co., 91 Fla. 345, 352, 108 So. 173.

And . applicable rules of pleading must be ob­served. Clark v. Johnson, 91 Fla. 485, 4.89, 107 So. 636; Brecht v. Bur-Ne Co., 91 Fla. 345, 352, 108 So. 173.

As to requisites and sufficiency of bill, see Welborn v. Pierce, 75 Fla. 667, 78 So. 929; Brecht v. Bur-Ne Co., 91 Fla. 345, 108 So. 173; Clark v. Johnson, 91 Fla. 485, 107 So. 636.

matter of cancelling an instrument of title, even though the instrument be void on its face. or can be shown to be so by extrinsic evidence. Such relief is expressly authorized under our statute re­garding the quietin g of title. Willis v. Fowler, 102 Fla. 35, 45, 136 So. 358.

For decision prior to this section, see Simmons v. Carlton, 44 Fla. 719, 33 So. 408.

An unacknowledg~d contract of option or sale signed by a married woman concern· ng her sep­arate property and the public record thereof may, under this section and § 62.17, constitute such a cloud on her title as will entitle her to maintain a bill for its removal , although such instrument was not entitled to be recorded under' § 695.03. But where she has received the consideration in part, she must in her bill offer to return the con­sideration received, or allege facts which would excuse her failure to do so. Keene v. Latimer, 102 Fla. 841, 136 So. 331.

Jury triaL-By way of dicta, it was intimated that this section cannot be construed so as to im­pair the right of jury trial. · Briles v. Bradford, 54 Fla. 501, 44 So. 937.

Applied in Commodores Point Terminal Co. v. Hudnall, 283 F. 150.

Stated in Edwards v. Sarasota Venice Co., 246 Fla. 773, 776.

Cited in Day v. Benesh, 104 Fla. 58, 65, 139 So. 448; Cameron v. Rogers, 70 Fla. 300, 70 So. 389; Myakka Co. v. Edwards, 68 Fla. 372, 67 So. 217, Ann. Cas. 1917B, 201.

II. TITLE AND POSSESSION.

This section is subject to the rule that the ba­sis for equitable interference in the removal of a cloud from a title to real estate is that the instru-ment, apparently valid, but void in fact, may be A. Title. vexatiously or injuriously used against the right- Complainant must show title.-"It has long ful owner, after the evidence to invalidate it has been well established in this state that a court of been lost, and the owner being in possession, can equity will not invoke its inherent jurisdiction to not immediately protect his rights by any legal quiet title or to remove a cloud from title un­proceeding. Brown v. Salary, 37 Fla. 102, 19 So. less the complainant first shows title to be in him-161. It may be subject. to other exceptions. Cre- self. Sanford v. Cloud, 17 Fla. 557; Benner v. men v. Quigley, 104 Fla. 1?3, 137. 139 So. 383. Kendall, 21 Fla. 584; Johnson v. Baker, 73 Fla. 6,

74 So. !llO." Atlantic Beach Improve. Corp. v. And it is subject to the equitable rule as to qui- H 11 Fl

eting tax titles. Cremen v. Quigley, 104 Fla. 133, a ' 143 a. 778• 782• 197 So. 464. See also, Morgan v. Dunwoody, 66 Fla. 522, 63 So. 905;

137, 139 So. 383· Hill v. DaCosta, 65 Fla. 371, 61 So. 750; Penin-A bill in equity cannot be maintained for the 1 N su ar aval Stores Co. v. Cox, 57 Fla. 505, 49

sole purpose of declaring the validity of a tax So. 191; Baltzell v. McKinnon, 57 Fla. 355, 49 So. deed by quieting the title against the former rec- 546. ord title upon the theory that the mere existence "The bill of complaint must show that the com­of the latter casts a cloud upon the former. where plainant has title to the lands in controversy, and there has been no attempt subsequent to the is- when after such allegation it appears from the suance of the tax deed to assert the record title. facts alleged that title is not in complainant. the Cook v. Pontious, 98 Fla. 373, 123 So. 765; Stuart bill is subject to a motion to dismiss. West Coast v. Steph~nus, 94 Fla. 1087, 114 So .. 767. Lbr. Co. v. Griffin. 54 Fla. 621, 45 So. 514; Mar-

"While there is no such proceeding in this state tin v. Busch, 93 Fla. 535, 112 So. 274." Atlantic as a bill to declare the validity of a tax deed only. Beach Improve. Corp. v. Hall, 143 Fla. 778, 784, yet · the validity of such a deed may be establ ished 197 So. 4 64. incidentally by the removal of claim construed as Which may be legal or equitable.-"It is only a cloud upon the title of a complainant holding un- required that in order to maintain the suit against der a tax deed. Stuart v. Stephanus, 94 Fla. 1087, a party not in actual possession that the complain-114 So. 767; Brecht v. Bur-Ne Co., 91 Fla. 345, ant must have either a legal or equitable title." 108 So. 173." Day v. Benesh, 104 Fla. 58, 66, 139 Atlantic Beach Improve. Corp. v. Hall, 143 Fla.

[ 299]

§ 66.12 CHANCERY JURISDICTION OVER PROPERTY § 66.16 .

778, 782, 197 So. 464, citing Peninsular Naval Stores Co. v. Cox, 57 Fla. 505, 49 So. 191.

And invalidity of defendant's title must be shown.-"He who comes into equity to get rid of an apparent legal title as a cloud upon hi s own must show clearly the validity of his own title and the invalidity of his opponent's. Equity will not act in such cases in the event of a doubtful title. Sanford v. Cloud, 17 Fla. 557; Levy v. Ladd, 35 Fla. 391, 17 So. 635; Day v. Benesh, 104 Fla. 58, 139 So. 448." Atlan tic Beach Improve. Corp. v. Hall, 143 Fla. 778, 783, 197 So. 464. See also, Houston v. McKinney, 54 Fla. 600, 45 So. 480; Jarrell v. McRainey, 65 Fla. 141, 61 So. 240; Hill v. DaCosta, 65 Fla. 371, 61 So. 750; Gasque v. Ball, 65 Fla. 383, 62 So. 215; Morgan v. Dun­woody, 66 Fla. 522, 63 So. 905; Charlotte Harbor, etc., Ry. Co. v. Lancaster, 70 Fla. 200, 69 So. 720.

Holder of mortgage has no such legal or equi­table title to property as entitles him to maintain action to quiet title under this section. Cook v. Pontious, 98 Fla. 373, 123 So. 765.

Where both parties claim title under the same person, a deraignment of. title by plaintiff to such person is all that was required in this regard. La­ganke v. Sutter, 137 Fla. 71, 74, 187 So. 586.

B. Possession. It is no longer essential that complainant be in

actual possession of the land from the title to which it is desired to remove the cloud. Realty Securities Corp. v. Johnson, 93 Fla. 46, 50, 111 So. 532; Sawyer v. Gustason, 96 Fla. 6, 118 So. 57. And the bill need not allege that the plaintiff is in possession of the property. Conway v. Wil­son, 132 Fla. 404, 181 So. 385.

Prior to this section the rule was otherwise, though there were some exceptions. Brecht v. Bur-Ne Co., 91 Fla. 345, 351, 108 So. 173, citing Patton v. Crumpler, 29 Fla. 573, 11 So. 225; Sloan v. Sloan, 25 Fla. 53, 5 So. 603; Haworth v. Nor­ris, 28 Fla. :763, 10 So. 18. And see Clark v. John­son, 91 Fla. 485, 489, 107 So. 636.

But the defendant must not be in possession of the property involved. Reeves v. Barlow, 94 Fla. 715, 716, 115 So. 44.

This section does not change the rule tliat a person claiming the legal title to land which is in the possession of another cannot maintain a bill in equity against the hitter to quiet title or remove as cloud therefrom the claim of the party so in possession. Sawyer v. Gustason, 96 Fla: 6, 118 So. 57. As to such rule, see Gamble v. Hamilton, 31 Fla. 401, 12 So. 229; Haworth v. Norris, 28 Fla. 763, 10 So. 18.

Allegations sufficient to show possession of complainant and to negative possession of defend­ant in proceed~ngs to cancel a tax deed. Clark­Ray-Johnson Co. v. Williford, 62 Fla. 453, 56 So. 938.

§ 66.12 HISTORY.

§ 1, ch. 10221, 1925 ; CGL 5006.

ANNOTATION. · See annotation under § 66.11,

§ 66.13 HISTORY.

§ 2, ch. 10221, 1925; CGL 5007.

ANNOTATION. As to former provision for joining unknown to

defendants and for constructive service upon them, see Brecht v. Bur-Ne Co., 91 Fla. 345, 352, 108 So. 173. As to constructive service, see § 48.01.

§ 66.14 HISTORY.

§ 1, ch. 10222, 1925; CGL 5008.

§ 66.15 HISTORY.

§ 2, ch. 10222, 1925; CGL 5009 . .

§' 66.16 HISTORY.

§ 1, ch. 11383, 1925; CGL 5010.

ANNOTATION. Cross reference.-See annotation under § 66 .17. Statute is designed to afford a prompt and ade­

quate remedy.-Chapter 11383, Acts 1925, from which §§ 66.16-66.24 were derived, was designed to afford a prompt and adequate method by which the rightful owner of real property may place hi s own title in repose by obtaining a speedy adju­dication of the effect of hostile elaims or clouds. McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A. L. R. 731; Reest v. Levin, 98 Fla. 397, 123 So. 809; Seaboard Air Line Railway v. Atlantic Coast Line R. Co., 117 Fla. 810, 814, 158 So. 459.

And should be liberally construed.-The stat­ute is remedial and highly beneficial, and should be liberally and reasonably construed and ap­plied. McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A. L. R. 731.

It is constitutional.-The title of Chapter 11383, Acts 1925, codified as §§ 66.16-66 .24, meets the requirements of. Art. 3, § 16, of th e Constitution. Hinely v. Wilson, 91 Fla. 815, 109 So. 468.

And adequately provides for jury trial.-The proviso to this section carries ample provision to insure parties litigant the right of trial by jury. Hawkins v. Rellim Inv. Co., 92 Fla. 784, 110 So. 350, 351.

There must first be a finding by the court that the land, or some particular part of it, is in the · possession of one or more of the defendants and, upon this being determined by the court, then ei­ther party may demana a jury trial as to that por­tion of the land so in possession of one or more of the defendants, and upon such demand being made, the court should make such order as is necessary to accomplish that end, but if no de­mand is made by either par ty fo r a jury trial then the right of trial by a jury will be deemed to have been waived and the chancellor shall proceed to final decree as to all the property involved in the suit and in any event should proceed to final de­cree as to any lands involved in the suit not found by him to be in possession of one or more of the defendants. Aubury v. Drummond, 95 Fla. 265, 116 So. 236, cited in Day v. Benesh, 104 Fla. 58, 67, 139 So. 448. •

A purchaser pendente lite may be permitted to intervene in a suit to quiet title brought under this statute, notice of lis pendens having been filed at the time suit to quiet title was brought. Nelson Bullock Co. v. South Down Develop. Co., 132 Fla. 495, 497, 181 So. 365.

[ 300]