34 Fla. 483 | Fla. | 1894
Jacob L. Kennedy, the appellee, filed his bill in equity in the Circuit Court of Polk county for the foreclosure of two mortgages made by Nancy Gilbert, deceased, during her lifetime. The first of said mortgages was given to secure a note for $4,753.98, made directly to Jacob L. Kennedy himself; the second made to one 1). Hughes to secure a note for $093.15, that covered a portion of the same property included in the mortgage to Kennedy, and that, the bill alleges, was assigned and transferred for a good and valuable consideration to Kennedy by Hughes. The complainant filed his bill against the defendant Ballard, as sheriff and civ officio administrator of Nancy Gilbert, deceased, and also against Emily C. Hardaway, Emma Gilbert Cloud, Annie G. Deemer, Volney Terril Gilbert, a minor, Meta 1). Gilbert, Warren P. Gilbert, Hugh McM. Gilbert, Angeoline Davis and Annelli Gilbert, a minor, as the heirs at law- of Nancy Gilbert, deceased. All the defendants were non-residents of Florida, except Ballard, the sheriff administrator. Order for publication requiring the non-resident de
As to the second mortgage they answer and say that-it was made to the said I). Hughes at the instance of the said Kennedy for purposes of his own and for his-own benefit, and not for the benefit of the said Nancy
Frank Clark was appointed by an order in the cause to be the guardian ad litem to defend the same for the two minor defendants, Yolney Terril Gilbert and Annelli Gilbert, and for them he, as such guardian ad litem, filed, without verification, a brief submission of their rights and interests in the cause to the consideration and protection of the court, demanding therein strict proof of the matters alleged in the bill. On the 22nd of March, 1890, the complainant moved the court to strike from the files the said joint and several answer filed by all of the defendants upon the grounds: (1) Because the same is not sworn to by the said defendants or either of them; (2) because said answer is not signed by said defendants or either of them; (3) because said defendants Yolney Terril Gilbert and An
The same defendants — all joining therein — also filed a cross-bill against Kennedy, setting up the same matters therein that were set up in their answer, and prayed therein that said mortgages sought to be foreclosed by Kennedy’s bill might beset aside and declared void as against them as a cloud upon the title of the land of said estate; and that the said two mortgages might be delivered up to be cancelled. Hiram D. Ballard, as administrator of the estate, also filed a separate answer in which he sets up the same defense to said bill as is set up in the joint answer before mentioned. But this separate answer of his was neither signed nor sworn to by him.
The complainant, on the 12th of April, 1890, moved the court as follows : “And now comes the complainant, by Crosier & McDermott, his solicitors, and moves the court as follows : 1. To strike from the file and record of the cause a paper writing filed herein on the 7th day of April, 1890, purporting to be the answer of defendant H. D. Hallard, admr., &c., because such answer is not verified or signed as required by law and by the order of the court. 2. To strike from the record a paper writing filed April ¿5th, 1890, purporting to be a cross-bill, for want of sufficient verification, and because the defendants filing the same have not answered the original bill of complaint. 3. For judgment pro eonfesso in the cause; and 4, for an order dismissing the original bill against all the defendants therein named, and described as the heirs at law of JSTancy Gilbert, deceased, the complainant Kennedy electing to proceed against H. D. Ballard,
' Now on this 12th day of April, A. I)., 1890, it appearing that papers filed as answers by the defendant H. D. Ballard, administrator, were stricken from the files by ■order of His Honor G. A. Hanson, this day made on motion of complainant’s solicitors, Crosier & McDermott, a judgment pro c.onfesso is hereby taken and ■entered against the said Hiram 1). Ballard, administrator of Nancy Gilbert, deceased, for want of plea, answer or demurrer, and the case set for hearing ex parle. W. II. Johnson, Clerk.” On the 14th day of Apiil, 1890, the judge, without reference to a master for taking evidence as to the amount due, upon his ■own computation of interest upon the two original notes and mortgages sued upon, rendered a final decree of foreclosure against H. I). Ballard, as administrator, alone, for the sum of $7,816.77. \V. II. Johnson was therein appointed special master to execute said decree. The defendant Ballard, as administrator, and all persons claiming under and through the said Nancy Gilbert, deceased, were thereby adjudged to be forever barred and foreclosed from all equity of redemption and claim of, in and to said mortgaged
The appellee insists that none of the defendants named in the original bill have any right to appeal from the final decree rendered in the cause, except Ballard, the administrator, because none but Ballard are parties to such final decree. This contention of the appellee is untenable. This court, in Merritt, Executor, vs. Daffin, 24 Fla., 320, 4 South. Rep., 806, passing upon the effect that our peculiar statute, making the realty of a decedent assets in the hands of his executor or administrator, had upon the question of parties to suits for foreclosure of mortgages made by the decedent in his lifetime, held that, the heir at law to such decedent was not a necessary party to a suit for the foreclosure of a mortgage upon the realty of the estate, and that the administrator, holding the real estate of his intestate as assets was, under the laws of this State, the only necessary party to such a suit; and that the heir at law, though not a party to such foreclosure suit, is concluded by a decree of foreclosure- and sale thereunder against such administrator. This construction of the statute makes the decree of foreclosure as binding upon the heir at law, and affects his. rights in the land as such heir as effectually as though he were a direct party to the decree itself. The case last cited, though holding that the heirs at law were not necessary parties to the foreclosure proceeding, does not decide that they are at all improper parties, should the pleader see proper to join them as defendants in such a proceeding. And their interests as heirs at law in the land to be affected are such that we do not think they would be improper parties. The-
The order of the court striking the separate answer filed by the defendant Ballard, as administrator, was proper because said answer was neither signed nor •sworn to by him. But it seems to be permissible for the court, under peculiar circumstances justifying it, to order an answer to be put in without the oath or signature of the defendant thereto. ---- vs. Lake, 6 Ves. Jr., 172, and note citing cases; Harding vs. Harding, 12 Ves. Jr., 159; Bayley vs. De Walkiers, 10 Ves. Jr., 441; Dumond, Admr. vs. Magee, 2 Johns. Chy., 240. The disclosures of fact made in the answer that had been put in by the heirs, and by the administrator’s separate answer, called so loudly for an investigation as to their truth, that, we think, under the
The order of the court striking the cross-bill filed by all of the defendants was predicated upon the ground that it was not sufficiently verified, and because the defendants filing the same had not answered the original bill. We know of no rule that requires a cross-bill to be verified. The order of the court dismissing same as to all of the complainants therein named, except Angeoline F. Davis was proper, for the reason that none of the complainants therein named, except Angeoline F. Davis, had answered the original bill. The general rule is that cross-bills should be filed at the same time with the answer to the original bill, and they may be filed subsequently to the filing •of the answer, but never before the complainant in the cross-bill has answered the original bill. 1 Beach’s Mod. Eq. Prac., secs. 438, 439. As to Angeoline F. Davis, however, the cross-bill should not have been ■dismissed on the motion made for that purpose. As before shown, she had answered the original bill. The matter set up in the cross-bill was a proper subject of equity jurisdiction, and arose out of the subject matter of the original bill. It prayed affirmative relief that could not have been attained by answer, ■and such relief as it was proper and within the jurisdiction of a court of equity to grant, if its allegations had been sustained by proof. The court, so far as she was concerned, erred in striking it out, but should have allowed it to stand as her cross-bill alone, dismissing it only as to the other non-answering com
The decree pro confesso entered by the clerk of the court on the 12th day of April, 1890, was improper and irregular, and no final decree could be granted ex parte thereon. The 12th day of April was not a rule day, and there was no order of the judge authorizing the entry of such decree pro confesso on that day, or precluding the defendant Ballard from amending-his stricken answer. The clerk, without some special authority from the court, has no power to enter a decree pro confesso at any other time than upon a rule-day when default in pleading has been made. The final decree, even as to the defendant Ballard, as administrator, was improperly and prematurely granted, he not having been precluded from further defense by the entry of a proper decree pro confesso.
For the errors mentioned, the decree appealed from is reversed with directions for such further proceedings in the cause as shall not be inconsistent herewith.