45 Fla. 553 | Fla. | 1903
This canse was referred by the court to- its late commissioners for investigation, who reported that the decrees-of the Circuit Court from which this appeal was ialcrej ought to be reversed.
A bill was filed by the appellee against appellant sa-sS the clerk of the circuit court of Polk county, as to wHans there was snbseqnetnly. a dismissal, wherein appellee alleged that he was the owner in fee simple of certain dascribed lands that were wild,, unoccupied and unimproved, set up his chain of title and sought to cancel a tax certificate in the hands of the appellant on the ground ©f irregularities in the assessment and other proceedings, aual i© enjoin the issuance of a tax deed by the clerk.
Appellant made answer, and to the answer the following exception was sustained: “This complainant excepis to the first paragraph of said answer, to-wit: 'That the defendant denies that the complainant is the owner af the land described in the bill of complaint, but whether or not the complainant obtained deeds of conveyance ©J same as alleged in the bill, the defendant is unable to say, as he has not knowledge of the subject,’ because ihe same is a conclusion of law and therefore impertinent.” The other exceptions are so presented in the abstract before us ak not to identify the paragraphs in the answer ■ to Which they shhould be applied, and are not passeü'
In the case of Bush v. Adams, 22 Fla. 177, this court stated the rule for determining when an answer may be excepted to for impertinence as follows: “If the part of an answer excepted to is relevant, or can have any influence in the decision of the suit either as to the subject-matter of the cotnroversv, the particular relief to be given, or as to the costs, it will not be held impertinent.” It is clear that, tested by this rule, the portion of the answer above quoted was not condemned by the exception urged. It sought to deny a material part of the complainants case.
Upon the sustaining of these exceptions the defendant again answered, whereupon the complainant moved the court to strike said answer, on the ground that it was a mere repetition of the former answer to which an exception had been .sustained, and for a decree pro confesso against the defendant. This motion was granted and a final decree was subsequently entered. The motion should have been denied.
There are material differences between the two answers, Among others we notice as new matter in the second answer a, general denial of all the allegations of the bill not specifically admitted, and further a claim is set up for reimbursement of moneys paid out for and on account of taxes asserted to have been assessed regularly and legally against said lands. These matters should not be ignored in this summary way.
The decrees appealed from will be reversed for such further proceedings as are conformable to this opinion and to equity practice.