53 Fla. 711 | Fla. | 1907
The alternative writ alleges that the respondent has allowed and is allowing its roadbed and LuG: †.> run lown, f :t:riorate and become unfit and an-
Upon the last motion to quash the alternative writ in this cause the court held that “when a reasonably suitable, safe and sufficient roadbed and track and accompanying appurtenances are furnished and maintained so as to meet the reasonably just requirements of the public service, the huv in that regard is satisfied;” and required an amendment to the writ “so that it shall generally require the respondent to put and maintain its roadbed and track along its main lines in a reasonably safe and suitable condition reasonably adequate to meet the requirements of the public service it has undertaken to perform, by replacing all decayed orossties with sound ones of such material and of such dimensions as will be reasonably adequate to the demands of the public service to be performed on such roadbed and track, and by replacing and properly securing
The second amended alternative writ requires, and it is proper that it should require, the replacing of all decayed crossties with sound ones, and the replacing and properly securing all defective, broken and missing angle bars or rail connections with sound ones, and the doing of other things commanded, to the extent of putting and maintaining the roadbed and track in a reasonably suitable and safe condition to meet the just requirements of the public service. The command of the writ should be construed as designed to accomplish this-end.
Matters of inducement stated in the writ, when replied to by the respondent, should be either admitted, denied or confessed and avoided. Immaterial, irrelevant or argumentative matter should not be included in an answer to an alternative writ of mandamus.
It was argued at the bar for the respondent that demurrer is the proper remedy for .the relator to invoke in testing the propriety -of the answer on idle grounds stated in the motion to strike.
If the answer to an alternative writ of mandamus is responsive to the allegations of the writ, but is wholly insufficient as a pleading, a demurrer will lie. If the answer is wholly irrelevant or improper, and impedes a fair trial of the cause, it may be stricken on motion; and any irrelevant, immaterial or otherwise improper matters stated in an answer may be stricken on motion. A demurrer goes to the pleading as a whole for insufficiency; while a mo
The answer in this case contains positive denials and other averments that are responsive to the material allegations of the alternative writ; therefore the motion to strike the entire answer is not well taken.
The motion to strike portions of the answer points out matters contained in the answer that are not responsive to the allegations of the alternative writ. Some of such matters are irrelevant, others are argumentative or otherwise infringe the rules of pleading.
On the motion to quash the first amended alternative writ in this cause and to strike portions of the writ, it was held that the allegations of the writ as to lands granted by the state to the several companies which were merged into the respondent company are not wholly irrelevant to the duties and obligations of the respondent involved here, and that, consequently, such allegations would not be stricken. The averments contained in the second, third, fourth and fifth paragraphs of the answer that the respondent “has no personal knowledge of said allegations, and same are immaterial if true,” are not responsive to allegations of the writ held to be not wholly irrelevant, and seek to raise a question of materiality of allegations of the writ, which, question was disposed of on the former motion.
The denial in the sixth paragraph of the answer that the respsondent received from any of the constituent companies any part or portions of the lands granted is coupled
Inasmuch as the attorney general in the oral argument upon this motion insisted that the writ does not charge that the respondent itself received any of the land grants mentioned, and no real effort has been- made in the return to deny that the subsidiary companies did receive land grants, we see no useful purpose to be subserved by permitting an amendment on this point, and it will no longer be treated as an issue in the cause.
The denial appearing in brackets in the latter part of the sixth paragraph of the answer, that the officers, agents, employees and -servants of the respondent have, since October 1st, 1905, failed to keep and maintain a suitable roadbed and track along the main lines of the railroad mentioned in the writ, is responsive to an allegation of the writ.
The averments contained in brackets in the seventh paragraph of the answer include matters that are immaterial or argumentative, but some, portions thereof are responsive to the allegations of the writ.
Though not precisely stated these averments admit that casualties have occurred, but deny that they were attributable to or caused by the negligence of the respondent in the maintenance of its track and roadbed in a reasonably safe and suitable condition; admit that there is on portions of the lines an uneven and occasionally an irregu’ar track, but says it is not attributable to negligence in the maintenance thereof; avers that at no point along
The averments contained in parentheses as they appear in the writ are not responsive to the allegations of the alternative writ. Some of the averments are argumentative or irrelevant and immaterial, while others assert matters relating to the duties of the respondent not proper in an answer and not in accord with the previous decisions of this court in this cause.
All the averments contained within parentheses as appears by the answer as given in the statement to this opinion are stricken.
As the answer contains sufficient averments responsive to the material allegations of the alternative writ, and as it is proper that the disposition of this cause should not be further delayed, any joinder of issue made by the relator will be confined to the issues tendered by the responsive and material averments of the answer, and the parties will proceed to the presentation of testimony upon material issues.
The motion to strike the entire answer to the alternative writ is.denied. The motion to strike portions of the answer is granted in the particulars indicated in this opinion. The relator is allowed five days to join issue, where