103 So. 193 | Fla. | 1925
Lead Opinion
This appeal is from an order denying a motion and petition for a rehearing on a final decree upon a bill of review.
The bill of review does not set out all of the record upon which it is predicated, viz, it does not state a demurrer that was overruled, or the answer of a defendant who was dismissed from the suit or the decree pro confesso entered against another defendant who is the complainant below herein, or the order dismissing one defendant from the suit and continuing the suit as to another defendant, complainant here. See 3 Ency. Pl. Pr., 574 et seq.; 21 C. J. 740 et seq.
The bill of review does not state that the final decree sought to be set aside has been performed.
No error apparent is shown by the bill of review, and no new matter is set up that in equity entitles the complainant to the relief sought. *34
The bill of review should have been dismissed. See Whilldin v. Green, this day filed.
Reversed.
WHITFIELD, P. J., AND WEST AND TERRELL, J. J., concur.
TAYLOR, C. J., AND ELLIS AND BROWNE, J. J., concur in the opinion.
Addendum
Upon consideration of a petition for rehearing filed herein, it appears that, in view of the confused and irregular state of the pleadings and the proceedings had thereon, it is just and equitable that the reversal of the decree appealed from should be without prejudice to further proceedings that may be appropriate to duly present the equities of the case.
It is therefore ordered and decreed that the order heretofore made by this court, reversing the decree appealed from, and directing the bill of review be dismissed, be and the same is hereby modified, so that the order appealed from shall be and is hereby reversed, and the cause is remanded for further proceedings in due course of law.
Reversal modified. Rehearing denied.
TAYLOR, C. J., AND WHITFIELD, ELLIS, BROWNE AND TERRELL, J. J., concur. *35