50 Fla. 501 | Fla. | 1905
(after stating the facts.) The pleadings in this case have been inartificially drafted and the entire proceedings have been loosely conducted. The record is in such a confused state that we have seriously considered the .advisability of following the precedent established by Judge RANDALL in Mattair v. Payne, 15 Fla. 682, text 686, wherein he said: “There seems to be no better way, to put these parties in their proper position to assert their legal and equitable remedies and disentangle them from the labyrinth of confusion in which they appear to be involved, than to dismiss the whole proceeding. This is sanctioned by Story’s Eq. Pleadings, Section 271, and cases cited, whether the bill be demurred to or not.”
To still further complicate matters and add to the difficulty of our task, the record is poorly prepared, but
As we have said, we seriously considered the advisability of dismissing the whole proceeding, but we have borne in mind, as was said by Judge BALDWIN in Hoyt v. City of Danbury, 69 Conn. 341, text, 348, 37 Atl. Rep. 1051, which language we have quoted and approved in Florida Cent. & P. R. Co. v. Foxworth, 45 Fla. 278, 34
In the instant case Henry H. Graham and George O. Stevens as copartners doing business under the firm, name of Stevens, Graham & Company, as well as Henry H. Graham individually, were made defendants to the bill, but after they had united with the Florida Land Rock Phosphate Company and other defendants in filing a joint and several answer to the bill the complainant filed in the Clerk’s office a praecipe for dismissal as to such defendants, thereby seeking to have the bill dismissed as to them. As was decided in Long v. Anderson, 48 Fla. 279, 37 South. Rep. 216, this action of the complainant, without an order of court, could not operate as a dismissal of the bill as to such defendants. However, the final decree of the 14th day of May, 1897, which was afterwards opened up, as well as the final decree of the 21st day of May, 1904, from which this appeal was taken, refer to the dismissal of the bill as to such defendants. This may be sufficient as a dismissal. Macfarlane v. Dorsey, 49 Fla. 341, 38 South. Rep. 512. At any rate, the bill was treated as dismissed as to such defendants by such defendants themselves, the appellee, the appellant and the court below. They were not before the trial court when the final decree was rendered and they
Having found that indispensable parties are not before the court, it necessarily follows under the authorities cited that the decree must be reversed. We might well stop here; but in view of the length of time this litigation has been pending and realizing that it is to the interest of all the parties to have it terminated as early as may be, we again call attention to the character and state of the pleadings. It may be that the bill as framed fs open to an attack by demurrer, though no such attack was made upon it. It may be that the answer as framed is open to attack by^ proper exceptions. It might be advisable for all the parties to look to their pleadings and see that they are in proper shape as well as that all the necessary parties are before the court. We express no opinion upon the merits, as it is neither proper nor advisable for us to do so.
The decree is reversed and the cause remanded, with leave to the appellee to add the necessary parties defendant to his bill and with leave to all the parties litigant to apply to the court for permission to recast, or amend