Griffith v. Henderson

55 Fla. 618 | Fla. | 1908

Whitfield, J.,

(after stating the facts.)—The bill of complaint alleges that the complainant is the owner in fee simple of timbered land described as the swj4 of nejij and the nwj4 of seRi of section 24; township 4 north, range 15 west; that the defendant is daily engaged in cutting the pine trees on said land and removing the logs made therefrom; that defendant asserts an intention of continuing, and complainant verily believes he will continue, to cut the timber and remove the logs from the land. The answer admits the complainant’s title to the land, and admits that up to the time the injunction issued he was having the timber cut from the land and removing the same, but avers he had a right to do so under a conveyance to him of the timber taken in connection with other matter's affirmatively stated in the answer.

The replication filed September 29, 1906, put in issue all the allegations of the bill of complaint that are not admitted in the answer as well as those matters stated in the answer that are not responsive to’ the bill. The allegations of the bill that are admitted in the answer are taken as true ^nd need not be proved. The allegations of the bill that are denied in the answer are to be proved by the complainant. N¡ew matter in the answer not responsive to the bill is to be proved by the defendant. The rule allows three months for taking tesmony.

The cause having been heard February 9, 1907, on the bill, answer and replication, after the expiration of the time for taking testimony, no testimony having been taken, and .the oath to the answer having been expressly waived in the bill of complaint, and the answer not being sworn to, such answer is a pleading, but it is not' evidenee in favor of the defendant for any purpose. As a pleading the admissions of the answer bind the defendant, the denials in the answer bind the complainant, and the new matter averred in the answer not responsive to the bill is eliminated. In so far as the unsworn answer states new matters not responsive to the bill, that are in opposition to, or in avoidance of, the allegations of the bill, such new matters not being called for or required by the bill of complaint, and being put in issue by 'the replication, the burden of proving them aliunde was upon the defendant, therefore such new matters not being proved cannot be considered. The only denial contained in the answer is as to the value of the land for timber which is not alleged in the bill of complaint. The answer contains no general denial of the allegations of the bill of complaint. The effect of the answer is to admit all the material allegations of the bill. The replication required the complainant to present proof to sustain all the allegations of the bill of complaint that are not admitted by the answer, and required the defendant to submit proof of all the averments of the answer as to the right of the defendant to cut and remove the timber, since such averments are i? avoidance of the trespass admitted, and are in no way responsive to any allegation contained in the bill of complaint. The essential allegations of the bill of complaint as to the title of the complainant to the land and the cutting and removing of the timber therefrom by the defendant are admitted by the answer, and it was not necessary for the plaintiff to present any proofs as to such allegations. See Patrick v. Kirkland, 33 Fla. 768, 43 South. Rep. 969.

No reference was made in the bill of complaint to a claim of right by 'the defendant to the timber on the land, therefore the averments of the answer as to such right in the defendant is affirmative matter not responsive to the allegations of the bill, and it was encumbent upon the 'defendant to prove such averments. The answer admits the title of the complainant to the land and the cutting and removing of the timber from the land which are the material allegations of the bill of complaint; and as the averments of the new matter of the right of the defendant to the timber on the land were not proven by the defendant, the complainant was entitled to a decree. See Griffith v. Henderson, filed this day.

The decree is affirmed.

Shackleford, C. J., and Cockrell, J., concur;

Taylor, Hocker and Parkhill, JJ., concur in the opinion.