G. C. WESTERVELT
v.
ISTOKPOGA CONSOLIDATED SUB-DRAINAGE DISTRICT, A FLORIDA DRAINAGE CORPORATION, ET AL.
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In this equity case, the Florida Supreme Court denied a petition for certiorari challenging the trial court's denial of a motion to strike portions of the defendant's answer. The Court affirmed the Chancellor's ruling that matters in an answer in equity need not be stricken unless they are wholly irrelevant and can have no bearing on the equities or decision of the case.
The petition for certiorari is denied. The Chancellor properly denied the motion to strike because under the applicable rule for equity pleading, a motion to strike portions of an answer must be denied unless the matter sought to be stricken is wholly irrelevant and can have no bearing upon the equities or influence upon the decision.
“The motion to strike from an answer any part of it which may be deemed to be redundant, impertinent or scandalous is controlled by the rule which requires the denial of the motion unless the matter sought to be stricken is wholly irrelevant, can have no bearing upon the equities and no influence upon the decision either as to the relief to be granted or the allowance of costs.”
Establishes the governing standard for motions to strike in equity pleading
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Join FLexlaw to unlock all legal intelligenceWestervelt sought to strike certain portions of the defendant Istokpoga Consolidated Sub-Drainage District's answer, arguing those portions did not co…
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The Chancellor has denied plaintiff’s motion to strike certain portions of defendant’s answer, and plaintiff now seeks to have the order reviewed on certiorari.
The petitioner bases his motion for reversal of the order of the Chancellor upon the ground that the matters sought to be stricken do not constitute a defense and are contrary to the law of the case established by the decision in this same case on a prior appeal, as reported in 158 Fla. 214, 28 So. (2nd) 859.
In finally disposing of the former appeal and in order that the law of the case might not be applied by reason of the reported opinion this Court decreed that its opinion should be: “ . . . without prejudice however to leave of the appellees to file an amended answer and counterclaim going to the equities of the cause.” (Underscoring supplied).
Relative to answers in equity, this Court in Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177, 179, stated:
“The motion to strike from an answer any part of it which may be deemed to be redundant, impertinent or scandalous is controlled by the rule which requires the denial of the motion unless the matter sought to be stricken is wholly irrelevant, *537can have no bearing upon the equities and no influence upon the decision either as to the relief to be granted or the allowance of costs. See Sec. 23, Chap. 14658, Acts 1931, known as the Chancery Act.”
The principles of equity pleading above enunciated have recently been re-affirmed by the case of Schupler v. Eastern Mortgage Co., 160 Fla. 72, 33 So. (2nd) 586.
The petition for certiorari is denied. This will save and reserve unto the petition all the benefits and advantages of any insufficiencies of the answer which are defensive in nature. It is further observed that by reason of the probability of another appeal to this Court from the final decree and by reason of the complications involved it appears that it would be a great saving of expense and time if the Chancellor, when entering the decree, should make a finding of fact on the material matters affecting the equities of the parties.
TERRELL, CHAPMAN, ADAMS and BARNS, JJ., concur.
THOMAS, C. J., and SEBRING, J., concurring in part and dissenting in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762 (Fla. 4th DCA 1972)…n to strike matter as redundant, immaterial or scandalous should only be granted if the material is wholly irrelevant, can have no bearing on the equities and no influence on the decision. Westervelt v. Istokpoga Consol. Subdrainage Dist., Fla.1948, 160 Fla. 535, 35 So. 2d 641; Gossett v. Ullendorff, Fla.1934, 114 Fla. 159, 154 So. 177. Indefiniteness of the contract terms was a valid defense which was neither redundant, immaterial, impertinent, scandalous, or sham and, therefore, was improperly stricken as…
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Mills v. Beims, 132 So. 2d 228 (Fla. 2d DCA 1961)…affect equities only to the extent of assessments of costs, the test being not whether the answer states a defense but whether matter is relevant or material.” To the same effect see: Westervelt v. Istokpoga Consolidated Subdrainage District, 1948, 160 Fla. 535, 35 So. 2d 641; and Schupler v. Eastern Mortgage Co., 1948, 160 Fla. 72, 33 So. 2d 586. Appellee would have us dismiss this appeal because the notice thereof was not filed within 60 days of the entry of the final decree as .required by the Supreme…
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Hurst v. Hampton, 274 So. 2d 891 (Fla. 4th DCA 1973)…m or otherwise subject to the summary treatment of being stricken. See Rule 1.140(f) and 1.150, F.R.C.P., 30 F.S.A.; Pentecostal Holiness Church, Inc. v. Mauney, Fla.App. 1972, 270 So. 2d 762; Westervelt v. Istokpoga Consol. Subdrainage Dist., 1948, 160 Fla. 535, 35 So. 2d 641. We feel that at the least the husband was entitled to develop his proofs of this defense for a judicial evaluation as to the merits. On the one hand, this may be a case where the wife’s rights have become absolutely vested as to pas…
Authorities Cited
- Gossett v. Ullendorff, 114 Fla. 159 (Fla. 1934)
- Schupler v. E. Mortg. Co., 160 Fla. 72 (Fla. 1948)
- Westervelt v. Istokpoga Consol. Sub-Drainage Dist., 158 Fla. 214 (Fla. 1946)