32 Fla. 334 | Fla. | 1893
Augusta F. Brown and her husband, C. M. Brown, appellees, filed a bill in the Marion Circuit Court on the 22nd day of February, 1889, against the appellants to foreclose a mortgage on a lot of land situated in Marion county, Florida, and particularly described in the mortgage. This mortgage was executed on the 18th day of August, 1886, by appellants to Augusta F. Brown, wife of C. M. Brown, to secure the payment of three notes payable to her, each for one thousand dollars, dated August 18th, 1886,' and falling due respectively on the first days of September, 1888, 1889, and 1890, with interest thereon at the rate of eight percent per annum from date until paid; interest payable semiannually. The mortgage contains the following clauses: ‘‘These presents are on this express condition, that if the said parties of the first part, their heirs, ex-exutors or administrators, shall well and truly pay un
The bill alleges that all interest due on said notes' had been paid up to December 17th, 1888, and that the sum of eighty dollars had been paid on the jjrincipal of the first note due September 1st, 1888, and only this note, less the 880, was past due, leaving due on it 8920, with the interest from the 17th day of December, 1888.
It is also alleged in the bill that by the failure of the-defendants to pay the first promissory note, the right to foreclose the mortgage for the amount at least clue upon said first note has accrued, and although the mortgage provides an option in the mortgagee to treat all said notes as wholly due upon default of jcayment of interest only on any or all of said notes for ten days, yet it is submitted that according to the spirit and in
A subpoena returnable to rule day in March, 1889, was regularly issued and served upon defendants in the bill, and on the 27th of that month they filed what is claimed to be a demurrer to the bill. ■ It is as follows, after giving the style of the cause: ‘vIn the above case come the defendants, by their' attorney, D. C.. Hardee, and before answering, deraurrs to plaintiffs bill on the grounds that the mortgage annexed to plaintiff’s bill, and which is made a part thereof, is void upon its face. That there is no subscribing witnesses to the same, and that it is defective, because not authenticated according to law, besides other defects, all of which are apparent upon the instrument itself. Whereupon (they) pray that .the bill herein filed by plaintiffs be dismissed with costs.” The foregoing wTas sworn to by W. T. Taylor before the Clerk of the Circuit Court as follows, viz: ‘-Personally came and appeared before me, the undersigned authority, W. T. Taylor, who being swmrn says that the facts stated in said demurrer are true, and that said mortgage is void as he is informed and believes.” ’ There is no certificate of counsel that the demurrer was well founded in law, and no affidavit that it was not interposed for delay.
On rule day in April, 1888,' solicitor for complainants entered in the clerk’s office a decree pro confesso
The first question to be determined is whether or not appellees’ solicitor had a right to disregard the paper filed as a demurrer, notwithstanding its appearance on the files. We think he had such right. The rule provides that “no demurrer or plea shall be allowed to be filed to an y bill unless upon certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant, or in case ■of his absence from the State, of his agent or attorney, that it is not interposed for delay; and if a plea, that it is true in point of fact. ” The paper in the record before us, and filed as a demurrer, has no such affidavit or certificate attached to it.
The cases in our court cited by counsel for appellants-Keen vs. Jordan, 13 Fla., 327, and Eldridge vs. Wightman, 20 Fla., 687-do not decide the point here. Where counsel do not disregard a demurrer or plea unaccompanied by any certificate or affidavit as required by the rule, but proceed to test its sufficiency in point of law by setting it down for argument, or making some motion for that purpose, and waive the requirements of the rule as to affidavit and certificate1 the court will dispose of the question without reference to such requirements. In the cases referred to it is said that a motion to strike the demurrer or plea
The next question is, did the court err in refusing to set aside the decree pro confesso on the application and showing made by appellants? This question must be answered in the negative. On an application of a defendant to open a decree pro confesso, in order to entitle him to success he must show both reasonable diligence and a meritorious defense. Keil vs. West, 21 Fla., 508; Myers vs. McGahagan, 26 Fla., 303, 8 South. Rep., 447. Appellants wanted the default set aside in order that they might attach the certificate and affidavit required by the rule to the paper filed as a demurrer, but there is no merit in the so-called demurrer; nor do appellants show that they have any meritorious defense to the bill. The grounds of this demurrer are, that the mortgage annexed to complain-' ant’s bill is void upon its face — has no subscribing witnesses to it, and is not authenticated according to law. The mortgage attached to the bill shows that it has two subscribing witnesses to its execution, and is properly acknowledged and duly recorded. The court
One of the grounds in the petition of appeal is, that the cause was commenced in the court below and prosecuted by Augusta F. Brown, a married woman, and C. M. Brown, her husband, as complainants, without the intervention of a next friend. It is true the bill shows that Augusta P. Brown is a married woman, and that her husband, C. M. Brown, unites with her in the foreclosure of the mortgage executed to her. The objection urged here is that the married woman can only sue by her next friend, and it is not competent for her and her husband to unite as co-complainants in a bill to recover her separate property. In Fairchild vs. Knight, 18 Fla., 770, where a married woman sought to enjoin a sale of her separate statutory property under an execution sued out by judgment creditors of her husband against him, it was said: "The bill here should have been by the wife, through her next friend, against the husband and the creditor.” The language of Judge Story is also quoted, that "in all such cases •she ought to sue as sole plaintiff by her next, friend, and the husband should be made a party defendant.” Story’s Equity Pleading, sec. 63. In Smith vs. Smith, 18 Fla., 789, where a wife filed a bill against her husband, and claimed that certain real estate purchased by the husband and deed taken in his name was paid for with her seperate property, it was held that a married woman can not in this State maintain a suit in her •own name, but must sue by next friend, unless in cases where she lias been licensed by the Circuit Court to transact business in her own name as provided in Chapter 3130, laws of 1879. In this case no objection
There can be no question but that cases may arise, showing such a conflict of interest between husband and wife over the subject-matter of litigation as to make it indispensable for the wife to sue by next friend. In Wade vs. Parker, 2 Keen, 60, objection having been made by demurrer to a bill filed by husband and wife to recover the wife’s separate property, Lord Langdale, after remarking that it had been usual to file such bills, and many decrees had been made without objection in such cases, the court itself taking-care that the separate estate of the wife recovered shall be protected from the husband, and reviev-ing the reasons given, in the English cases for requiring the wife, to sue by next friend, said: “And it is for the same reason that I have, though I admit with reluctance, come to the conclusion that I ought to allow this demurrer. I say with reluctance, because I think that suits thus constituted are of familiar occurrence, and I am aware that many decrees have been made in such suits without any inconvenience arising. I .think also-that in cases in which the husband. and wife are not
The record disclosing the fact that the suit here isi for the rcovery of the separate statutory property of the wife which the husband has the care and management of, and no objection having been made to the-manner in which the wife sued in the lower court, after default and final decree, such objection can not be made for the first time on appeal in this court. There is, however, an error in the entry of the final decree that is open to the objection of appellants. The mortgage provides for a reasonable fee to be allowed the attorney for foreclosure proceedings. No specific sum was fixed in the mortgage, or alleged in the bill, for this purpose, and it. was not competent for the court to decree a sum for this purpose without proof. It appears that the court allowed one hundred dollars as attorney fee for foreclosing the mortgage, without any proof that such sum was a reasonable amount for that purpose. This was error. Long vs. Herrick, 26 Fla., 356, 8 South. Rep., 50; Adams vs. Fry, 29 Fla., 318, 10 South. Rep., 559. The record shows that the decree was only for the first note mentioned in the mortgage less the credit of $80, with interest thereon from the
The decree appealed from is affirmed, except as to the allowance of the attorney’s fee; and as to this it is reversed with directions for the court to ascertain by ■competent evidence in accordance with its rules of practice a reasonable attorney fee to be allowed complainants.
Judgment will be entered here accordingly.