46 Fla. 513 | Fla. | 1903
On October 23, 1899, appellants filed their bill in equity in the Circuit Court of Alachua county against H. F. Dutton, J. G. Nichols, W. G. Robinson and H. G. Robinson, partners under the firm name and style of H. F. Dutton & Co., and L. W. Jackson and his wife, Susie R. Jackson, praying foreclosure of a mortgage upon real estate. H. G. Robinson died while the suit was pending, and upon suggestion of his death, the suit was continued in the name of the surviving partners of H. F. Dutton & Co. The bill alleged that the mortgage sought to be foreclosed, executed by L. W. and Susie R. Jackson, was a first mortgage upon the premises, and that Dutton & Co. were the owners of a second mortgage upon the same premises, executed by the same parties, and as mortgagees
Dutton & Co. filed their answer in which they alleged that they were strangers to all and singular the matters and things in complaiants’ bill, and required strict proof of each and every allegation therein contained. The answer also alleged that Dutton & Co. were the owners of the second mortgage mentioned in the bill, admitted that it was inferior to the mortgage sought to be foreclosed.by complainants and asked that any and all sums of money realized from the sale of the property in excess of the amount due upon complainants’ mortgage and the expenses of suit be paid into the registry of the court to be applied to the payment of the mortgage held by them at the discretion of the court. - This answer was sworn to by only one member of the firm of Dutton & Co.
At the time of filing the answer Dutton & Co. filed their cross-bill against appellants and L. W. Jackson ■ and his wife, Susie R. Jackson. The cross-bill set forth the proceedings had in the original suit and alleged that Dutton & Co. were the owners of the second mortgage mentioned in the original bill which was long past due; that said mortgage was made subsequent, and the lien thereof was inferior, to the mortgage sought .to be foreclosed by appellants, and prayed that the cross-bill be heard with and at the same time as the original bill; that an account be taken of the amount due Dutton & Co. upon their mortgage, that L. W. Jackson be directed to pay whatever should appear to be due upon the taking of such account with the cost of that proceeding, and in default of such payment that when the mortgaged premises should bé sold to satisfy the
At the hearing had upon the motion and demurrer, March 16, 1900, the court overruled the demurrer and made an order that the motion to strike be granted as. to the members of the firm of Dutton & Co. who had not sworn to the answer unless such members should swear to same within ten days.
Thereafter appellants moved to strike the answer of Dutton & Co. “because that since the affidavit to the answer required by the court has been filed to said bill the purported answer of Dutton & Co. had not been refiled, and because the said affidavit thereto has not been filed.” The court denied this motion and on the same day placed the file mark upon the affidavit of all members of the firm of Dutton & Co. appended to the answer, which affidavit appears to have beeji sworn to within the time allowed by the order of March 16, 1900, for filing same.
Other proceedings were had in the case, resulting in an order made July 10, 1900, which referred the cause to a master to take testimony and report, and directed that the original and cross-suits be heard together. On September 11, 1900, appellants entered their appeal from the orders made upon the demurrer to the cross-bill and the motions to strike the answer of Dutton & Co.
The first assignment of error questions the propriety of the ruling upon the demurrer to the cross-bill. It will be observed that the cross-bill is not in aid of any defense interposed by Dutton & Co., but is brought to obtain affirmative relief against defendants. It does not claim any
The order overruling the demurrer to the cross-bill is reversed, the orders denying the motions to strike the answer are affirmed, and the cause is remanded for such further proceedings as may be agreeable to chancery practice and consistent with this opinion.