67 Fla. 433 | Fla. | 1914
The appellee as complainant below filed its bill in equity against the appellant as defendant below in the Circuit Court of Pinellas County praying therein for the cancellation of a deed conveying real estate as a cloud on the complainant’s title. The bill expressly waives answer under oath. To the bill the defendant filed a plea. The complainant then filed a motion to require the defendant to elect upon which one of two separate defenses alleged to be set up in said plea it would rely.- The court below granted this motion, and the defendant appealed to this court from such interlocutory order. This court in review of such order, modified the same by permitting the defendant to elect to have its said plea stand as- an answer to the bill, saying nothing with reference to permitting the complainant to except to such plea as an answer to the bill. Pinellas Packing Company v. Clearwater Citrus Growers Association, 65 Fla. 340, 61 South. Rep. 625. The defendant promptly upon the decision here filed its election to allow its plea to stand as an answer to the bill. . Whereupon the complainant without leave of this court, filed exceptions to the said plea treated as an answer .for insufficiency. The court below made an order sustaining said exceptions, and this order the defendant below brings here now for review by appeal.
This- order was erroneous, for two reasons: (1) Because the. order of this court on the. former appeal permitting the defendant to elect to have its plea stand as afi answer to the bill, did not reserve to the complainant the right to except to such plea considered as an answer!
(2) The order appealed from was further erroneous because the settled rule,is that, exceptions for insufficiency will not lie to an answer to a bill that is not essentially one for discovery, and that expressly waives an answer under oath. Indiana Mfg. Co. v. Nichols & Shepard Co., 190 Fed. Rep. 579; United States v. McLaughlin, 24 Fed. Rep. 823; Goodwin v. Bishop, 145 Ill. 421, 34 N. E. Rep. 47; Sheppard v. Akers, 1 Tenn. Chy. 326; McCormick v. Chamberlain & Moore, 11 Paige Chy. 543; Fletcher’s Eq. Pl. & Pr., paragraph 335.
The order of the court below appealed from m said cause is hereby reversed, with directions to strike the complainant’s exceptions to the answer of the defendant from the files. The costs of this appeal to be taxed against the appellee;