MARION L. BLANTON and BONNIE BLANTON, his wife, also known as JAMES M. WILSON and MRS. MABEL A. HASSALL KEMP, joined by her husband, CHAS. B. KEMP, Appellants, vs. WM. G. WOODWARD, Administrator C. T. A. of the Estate of CLARA H. BLANTON, deceased, Appellees.
Supreme Court of Florida
June 3, 1932
November 10, 1932
107 Fla. 691 | 144 So. 300
It follows from this conclusion that the decree of the Chancellor is affirmed as to the first question stated and reversed as to the second question.
Affirmed in part, reversed in part.
BUFORD, C.J. AND WHITFIELD AND DAVIS, J.J., concur.
ELLIS, J., concurring.—I think Mrs. Mallett has a preferred claim for the full amount of her deposit $13,697.14. My views are expressed in dissenting opinion in the case of Garrett vs. Tunnicliffe, Liquidator (107 Fla. 393, 145 So. 213), and I think she should be paid in full. My views expressed in the concurring opinion in the case of Everglade Cypress Co. vs. Tunnicliffe, Liquidator (107 Fla. 675, 148 So. 192), both opinions filed December —, 1932.
Fullerton, Duss & Gillespie, for Appellees.
ANDREWS, Commissioner.—This cause is here upon appeal from an order of the Circuit Court of Volusia County, granting a motion to strike the amended answer of Mabel A. Hassall Kemp and Chas. B. Kemp.
The bill of complaint was filed on January 12, 1931, by Wm. G. Woodward, Administrator of the estate of Clara H. Blanton, to foreclose a mortgage on real estate therein described, dated June 25th, 1925, which was executed by M. L. Blanton and wife, also known as James M. Wilson and wife, to secure the payment of $2,500.00 note due two years after date with interest.
The bill alleges in substance that the mortgaged premises
There are several other allegations in the bill but the above furnish in substance the basis for the main issues raised upon this appeal.
An answer to the bill was filed by Mr. and Mrs. Kemp and a demurrer to the same being sustained, Defendants filed their amended answer the 8th paragraph of which sets up a counter-claim or set-off which in substance alleges that the said Clara A. Blanton, the mortgagee, was a semi-invalid for about four years next preceding her death and that she engaged defendant as nurse and companion also to aid her with business affairs and household duties, which services she rendered until the death of the said Clara H. Blanton on July 30, 1930; that during the first year, next after the first day of September, 1926, Defendant at deceased‘s special instance and request, devoted about one-third of her time to the care and business affairs of the said Clara H. Blanton and that during the last three years of her life the Defendant devoted nearly all of her time to the care and attention of the deceased as her nurse, companion and business agent; that the said Clara H. Blanton personally agreed and promised “to pay the reasonable
The answer further alleges that since the death of the said Clara H. Blanton, the Defendant on March 6, 1931, filed in the County Judge‘s Court for Volusia County, a sworn statement of her account and claim of $4,000.00 against the estate of the deceased for the personal services performed and rendered to deceased during the last four years of her lifetime, a copy of which is attached to the answer and made a part hereof. In this connection it is noted that the sworn statement is for “part time nurse and companion” $500.00 from Sept. 1, 1926, to Sept. 1, 1927, and $3,500.00 from September 1, 1927, to July 30, 1930; total $4,000.00.
The prayer for affirmative relief asks that the Court decree that the claim of $4,000.00, with interest thereon, is a valid and subsisting debt against the estate of the deceased; that an account be taken as to what, if any, amount is due the said Clara H. Blanton upon the said mortgage debt sought to be foreclosed; that an account be taken as to the amount of principal and interest due and owing to the said Defendant by the estate of the deceased on the account of said claims; that after the said accounting the Court enter a decree in favor of Defendant against the estate of the deceased for such balance as may be found is still due the Defendant from its said estate.
When the demurrer and motion to strike came on for consideration by the Court, an order was entered granting the motion to strike the answer from which Defendants appealed, and assigned as error the striking of the amended answer.
The principal question presented by the order granting the motion to strike, is whether or not said paragraph 8 of the amended answer sets up such a set-off or counter-claim as the statute permits in cases of this nature, the same being based solely upon a claim for personal services as companion and nurse, alleged to have been rendered deceased at her request during her lifetime, for which Defendant prays for a money decree in her favor. It is noted that there is no prayer in the original or amended answer for the cancellation of the mortgage of record.
It is also observed that the bill does not ask to have included in the decree any interest payable by defendants up to the last day of September, 1930, and such waiver may in substance be treated as an expressed settlement of any amount the deceased felt she owed defendant for services. In this connection it should be noted that defendant purchased the property on October 25, 1929, which is nearly three years after the date she alleges her services began for which she counter-claims and is less than one year preceding the death of the mortgagee.
Appellee contends that while each of the alleged promises
We first direct our attention to the issue as to whether the Court erred in striking the counter-claim set up as a defense to the foreclosure of the mortgage.
The counter-claim or set-off of the Defendant is apparently pleaded pursuant to
“The answer must state in short and simple form any counter-claim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaims, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims. Sec. 35, Chap. 14658, Laws of Fla. 1931.
It is observed that if the defendant in equity sets up a counter-claim in the same suit it must be a claim (1) “arising out of the transaction which is the subject matter of the suit;” or, (2) he “may” set out any set-off or counter-claim against the plaintiff which might be the subject of an “independent suit in equity” against Complainant,—“so as to enable the Court to pronounce a final judgment in the same suit both on the original and cross-claims.” This court is committed to the proposition that even the subject matter of the counter-claim,—the “independent suit in equity” must have some connection with
In a rather recent decision by Mr. Chief Justice Taft interpreting said
“The counter-claim referred to in the first part of the paragraph must, therefore, be an equitable counter-claim, one which like the set-off or counterclaim referred to in the next clause could be made the subject of an independent bill in equity. The counter-claim and the set-off and counter-claim in the two clauses are in pari materia except that the first grows out of the subject matter of the bill, and the other does not. That which grows out of the subject matter of the bill must be set up in the interest of an end of litigation. That which does not may be set up if the Defendant wishes in one proceeding in equity * * * quickly to settle all equitable issues, * * *. The rule should be liberally construed to carry out its evident purpose of shortening litigation, but the limitation of counter-claims to those which are equitable is imperative.” (Italics ours). American Mills Co. v. American Surety Co., 260 U. S. 360, 42 S. C. T. 149, 151; 67 L. Ed. 306.
In the recent case of Tilton v. Horton, 103 Fla. 497, 137 So. 801, this Court held that the reason for the above statute and rule requiring that the counter-claim or set-off that does not arise out of the subject matter of the suit must constitute a subject matter for “an independent suit in equity“—may be found imbedded in the Federal and State Constitutions, respectively, which provide in the former that in suits at common law the right of trial by juries shall be preserved (
By
In the case of Levitt v. Axelson, 102 Fla. 233, 135 So. 553, it was held that “while a court of equity, having once obtained jurisdiction, of a cause, will retain it for all purposes and administer complete relief, yet, in order to authorize relief which can be obtained in a suit at law, there must be some substantial ground of equitable jurisdiction both alleged and proven; otherwise, the court of equity will not retain jurisdiction and grant a purely legal rem-
The case of Hitchcolk v. Mortgage Securities Company, 95 Fla. 147, 116 So. 244, discussed in the briefs of both parties to this appeal, involved notes which the bill undertook to have cancelled and defendant by way of counter-claim asked for a money judgment on the same notes which constituted the subject matter of the suit. In the instant case the claim interposed is not only a legal one but in addition it did not arise out of the subject matter of the suit. The above case is not in point.
The complainant, as shown by his motion to strike, objected to trying the issues of the counter-claim in this mortgage foreclosure suit upon the ground that the unliquidated claim is based upon an independent cause of action triable at law.
It is our conclusion that the trial court committed no reversible error in granting the motion to strike the answer of the defendant. The decree is, therefore, affirmed.
PER CURIAM.—The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and decreed by the Court that the decree of the court below should be, and the same is hereby affirmed.
BUFORD, C.J. AND WHITFIELD, ELLIS, TERRELL, BROWN AND DAVIS, J.J., concur.
ON PETITION FOR REHEARING.
ANDREWS, Commissioner.—The petition for rehearing complains that the court in its opinion heretofore rendered in this case overlooked and did not consider the questions presented by the trial court‘s order of April 6, 1931, striking out paragraphs 1, 4 and 6 of the answer of the De-
Conceding that Appellants properly raised and presented the questions alleged to have been overlooked it was not deemed necessary to pass upon them as they were not decisive of the case. If the counter-claim set up by paragraph 7 of the original answer, and paragraph 8 of the amended answer was not applicable and could not constitute a defense to Complainant‘s foreclosure suit, the other paragraphs of the answer referred to above would not change the conclusions reached in affirming the trial court‘s order striking the answer.
However, since we now have the matter before us, it may be here stated that the order of the Court striking out the above noted paragraphs of the answer and amended answer which group by numbers separate paragraphs of the bill of complaint which allege independent facts, constituted no error as our statutes require a defendant to either “admit,” “deny,” “explain” or aver that he is “without knowledge” as to each “claim” asserted by the bill.
It is observed that Sections 3118 and 3119 Revised General Statutes of 1920 (
“The Defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, not specifically admitting or denying or explaining the facts upon which the Plaintiff relies, unless the Defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other than of value or of amount of damage, if not denied, shall be deemed confessed,” etc.
When a Defendant is brought into a court of chancery to answer a bill of complaint, he is required to make full, true, direct and perfect answer to each fact alleged in the bill. There must be no evasion or doubtful terms but he must as to all material allegations either admit them or deny them, or if he has no knowledge of the facts alleged he may disclaim such knowledge and require strict proof if he so desires. Where the facts are within the Defendant‘s knowledge he must answer positively, and an evasive and qualifying answer is not sufficient. If he knows they are true he must admit them. Bostwick v. VanSant, 98 Fla. 565, 124 So. 14; Citizens Bank & Trust Co. v. Gray, 100 Fla. 958, 130 So. 274; McBride v. Worley, 66 Fla. 564, 64 So. 235; 1 Ency. Pl. & Pr. 875; Story‘s Eq. Pl. (10th Ed.) Sec. 852, 21 C. J. 471.
The portions of the answer stricken do not comply with these most exemplary rules. No sufficient reason appearing for granting a rehearing in this cause the petition is hereby denied, and the decision heretofore reached is adhered to.
BUFORD, C.J. AND WHITFIELD, ELLIS, TERRELL AND DAVIS, J.J., concur.
BROWN, J., dissents in part.
Paragraph 1 of the answer reads as follows:
“1. These defendants admit the allegation contained in paragraphs 1, 2, 3, 4, 5, 6 and 7 of the bill of complaint.”
Paragraph 4 of the answer reads as follows:
“1. These defendants admit the allegations contained in paragraphs 10, 11 and 12 of the bill of complaint.”
I think the court erred in striking the paragraphs above quoted. It seems to me that these paragraphs of the answer comply fully with the statute of 1915, now
I am inclined to the view that the correct interpretation of the 1915 Statute is that it abolishes the former practice of concluding an answer with a general denial, and prevents the defendant from being allowed to answer the whole bill by merely saying that he denies or is without knowledge as to each and every allegation of the bill of complaint, but that the legislature contemplated that ordinarily in a chancery suit the defendant would of his own knowledge know that some of the allegations of the bill are true, some of them he would contend are untrue, and per-
It would appear entirely unnecessary to embrace in an answer a separate paragraph as to each paragraph of the bill which the defendant desires to admit or deny in toto. If, for instance, the defendant knows that the first ten paragraphs of a bill are true, why should he not be permitted to admit this in one paragraph, specifying the respective paragraphs thus admitted, instead of lengthening his answer by putting in ten paragraphs, one for each of the admitted paragraphs, seriatim? However, the error in striking paragraphs one and four of the answer was probably error without injury, as under
As I understand it, the majority holds that under the statute a defendant in his answer may deny each and every allegation contained in a specified paragraph of the bill of complaint without being required to repeat substantially the several allegations of such paragraph and then deny each of them separately. In this respect I fully concur.
Upon further consideration, I am inclined to the view that paragraph eight of the said answer of Mrs. Kemp and her husband, if it had not been specifically interposed as a set-off or counter-claim, might have been upheld as being in substance an averment or plea of payment of the mortgage debt by services rendered to the mortgagee at her request and in consideration of which she promised that
The second headnote to the case of Patrick v. Petty, 83 Ala. 420, 3 So. 779, reads as follows:
“Where there is a contemporaneous oral agreement that a promissory note is to be discharged by boarding and caring for the payee for a given time, so long as the agreement remains executory, it is wholly inoperative as a defense to a suit on the note; but when it has been performed it becomes a complete defense, and if performed in part, and full performance is prevented by the death of the payee of the note, it amounts to payment pro tanto, without presentation as a claim against the estate.”
I am inclined to the view therefore that a debtor may as effectually discharge his debt by performing services for his creditor as by paying in cash, when his creditor agrees to accept such services in payment and the services are actually performed pursuant to such agreement. It is quite possible that if the chancellor had refused to strike the paragraph on the ground that it was in substance a plea of payment it would not have been an erroneous ruling, the answer having been filed before the Chancery Act of 1931 became effective. But taking paragraph eight of the answer as what it purports to be, a set-off or counter-claim, and considering it in connection with the prayer for an accounting as to the amount of the indebtedness due to
I think therefore, that the petition for rehearing should be granted and the former opinion and judgment should be reconsidered.