Lykes v. Beauchamp

49 Fla. 333 | Fla. | 1905

Shackleford, J.,

stating the facts.)

Three errors are assigned, the first being based upon the interlocutory order a®d the other two upon the final decree. ‘

It is contended by the appellant that the Chancellor erred in making the interlocutory order denying his motion for an extension of time in which to take testimony. The case of Long v. Anderson, 48 Fla. ...... 37 South. Rep. 216, is cited in support of this contention. We are of the opinion that the cited case, instead of supporting this contention, is adverse to it. In the seventh head note thereof we said that “The matter of extending the time for the taking of testimony in an equity suit is for the court below to decide, resting within the sound judicial discretion of such court, and ordinarily the determination of this question will not be disturbed by an appellate court; yet such ruling is reviewable on appeal, and where it is plainly made to appear that there has been an abuse of this judicial discretion it is the duty of an appellate court to interpose, and correct the same.”

Equity Rule 71 provides that “Three months, and no more,- shall be allowed for the taking of testimony after the cause is at-issue, unless the judge shall, upon special cause shown by either party, enlarge the same; and no testimony taken after such period shall be allowed to be read in evidence at the hearing.”

As is disclosed by the transcript of the record, the replication to the answer was filed on the 2nd day of May, 1904, hence the three months allowed for taking testimony under the rule just cited expired the 2nd day of August, 1904, and yet, so far as we are advised by the transcript, no testimony was taken by the appellant during that time, and no application was made for an enlargement of the time until the 12th day of November, 1901, which was after notice of final hearing of the cause had been served upon the solicitors for the appellant. The only “special cause shown” to the Chancellor was an affidavit from one of the three solicitors for the appellant to the effect that from the time of the filing of the replication up to the 7th day of November, 1904, such solicitor had been very much occupied with his law practice, including his duties as City Attorney of the City of Tampa, having been called away from said city on professional business a number of times, and also had been the campaign manager of one of the candidates for Mayor of the City of Tampa, and in addition thereto, had been absent from the city for about a month under medical treatment. Said affidavit further states that, while appellant held the legal title to the land in question, Solon B. Turman, who was one of the solicitors for the appellant, was the real owner and that affiant had been acting as solicitor in the cause more through courtesy to the said Turman than from any other consideration. In this affidavit, as well as in the other three affidavits filed by appellant in support of his m'otion, the names of certain witnesses are set forth and the facts which the appellant expected to prove by them in support of the allegations in his bill. The appellee also filed one affidavit from one of her-witnesses controverting some of the statements set forth in some of the appellant’s affidavits. It is unnecessary to set forth the substance of these affidavits. The oath to the answer was waived, but by filing a general replication thereto the appellant thereby put in issue all the matters alleged in the bill and not admitted in the answer, and it was, therefore, incumbent upon the appellant to prove all of the material allegations of his bill by at least a preponderance of the evidence. Parken v. Safford, 48 Fla. ......, 37 South. Rep. 567, and authorities there cited. The answer was responsive to the bill, and positively denied the material allegations therein upon which the appellant based his claim to the relief sought. To say the least of it, it is exceedingly doubtful whether or not it was made to appear from the affidavits that the appellant could have maintained the burdei so cast upon him by law. Be that as it may, no “special cause” was shown to the Chancellor to warrant him in enlarging the time for the taking of testimony. The difference in the showing made in the instant case and in the case of Long v. Anderson, supra, is too. obvious to require comment. Also see Magbee v. Kennedy, 26 Fla. 158, 7 South. Rep. 529, which is.directly in point, an application having been made for an enlargement of the time in that case after the three months had expired' and' after the case had been set down for a final hearing.

The second error assigned is based upon the denial of the Chancellor at the final hearing of the motion of the appellant to dismiss the bill without prejudice.

The only authority cited by the appellant in support of this assignment is the case of Long v. Anderson, supra. We are of the opinion that the appellant has again been unfortunate in his selection of an authority. In that case the point presented to us for determination was as to the right of the complainant to dismiss his bill before the hearing by the mere filing of a praecipe for dismissal in the clerk’s office, no order of the court being obtained. It is unnecessary to repeat what we said there, as the opinion therein is of recent date.

The case of DaCosta v. Dibble, 40 Fla. 418, 24 South. Rep. 911, is in point and is adverse to the contention of. appellant. The instant case had been set down for a hearing by the appellee, as we have seen, under the provisions of Circuit Court Equity Rules 85 and 86, and the Chancellor in the exercise of his judicial discretion had already denied the motion of the appellant for an enlargement of the time for the taking of .testimony, deciding that no “special cause” or “good cause” had been shown to warrant him in opening the same to allow further time for taking testimony. In the cited case we held that i‘the complainant has no absolute right to a dismissal of his bill without a hearing upon the merits,” but that it was for the Chancellor to decide whether or not the bill should be dismissed without prejudice. Also see the authorities therein cited, especially Robbins v. Hanbury, 37 Fla. 468, 19 South. Rep. 886. We would refer to Ahren v. Willis, 6 Fla. 359, cited and approved in Magbee v. Kennedy, supra, text 163. We are of the opinion that, upon the showing made before him at the final hearing, the Chancellor did not abuse his judicial discretion in denying the motion of .the appellant to dismiss the bill without prejudice, and we must refuse to disturb his ruling.

The only remaining error to be considered is based upon the rendering of the final decree dismissing the bill. From what has already been said, a discussion of this assignment becomes unnecessary. The appellant failed to sustain the allegations in his bill, therefore the Chancellor rightfully found against him and ordered the bill dismissed. See Pierce v. Brunswick & Balk Co., 23 Fla., 283, 2 South. Rep. 366; Ropes v. Jenerson, 45 Fla. 556, 34 South. Rep. 955.

Finding no error in the record, the order and decree appealed from must be affirmed, and it is so ordered, at the .cost of the appellant.

Whitfield, C. J., and Carter, J., copcur. Taylor, P. J., and Hooker, J., concur in the opinion. Cockrell, J., did not participate in the decision.