26 Fla. 158 | Fla. | 1890
This is a chancery suit in which the complainant seeks to set aside certain deeds to the wife of Thomas P. Kennedy, alleged to be in fraud of creditors of Kennedy, so as to let executions against Kennedy, assigned to complainant, run against the property conveyed by said deeds. There is no question before us on the merits of the case, and it is unnecessary to set out the allegations of the bill. The only question involved is one of practice growing out of the refusal of the judge to enlarge the time for taking testimony. Equity rule 71 allows “ three months, and no more * for the taking of testimony after the cause is at issue, unless the judge shall, upon special cause shown * enlarge the time.” The cause was at issue January 7, 1884, replication to the answer having been filed that day. No other step was taken till April 22, 1884, when the cause was set down for hearing by defendants. June 2d thereafter, according to notice by complainant, he was to make application to have the time for taking testimony extended. His application was denied August 5, 1884. There was subsequently a motion for a rehearing of the application, which was also denied. The only errors assigned for our consideration relate ro these refusals to enlarge the time for taking testimony.
In his petition for further time, complainant’s excuses for delay are that in consequence of propositions for a compromise he hoped the matters in controversy would be settled out of Court; that he had extended courtesies to defendants by promises not to take advantage of the absence of their counsel; that immediately after the filing of the replication he commenced preparing to take testimony, but the witnesses resided in Pennsylvania, and correspondence was first necessary in order to learn what could be proven to show the untruth of the answer; that he was delayed in
In addition to his own affidavit verifying the petition, he presented other affidavits, one of which does not touch the question before us; another of which, on-that question, was by his associate counsel, who says he was frequently absent on profess:onal and official business, and at other times unavoidably absent, and when at his office at home was busy a greater part of the time in professional and other matters that claimed his almost constant attention ; and another by his wife, who says he \vas seriously sick the greater part of every day from the middle of December, 1883, to the beginning of April, 1884, so that he was wholly unfit to attend to his law business, and that nearly all the work he did as Deputy Collector of Customs at the port of Tampa was done while confined to his room.
This is the strength of his case towards showing “spe*
While the discretion of the Court, exercised in refusing to enlarge the time for taking testimony, is reviewable on appeal, this Court will act on the presumption of the correctness of its ruling, and will not change the ruling except in a clear case of mistake or hardship; and it is our opinion that in this case the discretion was exercised properly, and that we should not set aside the order of refusal. As said in Ahren et al. vs. Willis, 6 Fla., 359, it is “a safe rule for the guidance of an appellate tribunal, that every presumption is to be in favor of the correctness and propriety of the ruling of the Court below, where the same is made in reference to any point which * * was a matter purely of discretion.” Particularly does this apply here, where the judge was in a position to understand fully what weight should be given to excuses based on the extent of the circuit, absences of the judge and of attorneys, and the professional courtesies usual in the circuit.
The order is affirmed.