T. H. GARY, APPELLANT,
v.
ROBERT J. MICKLER AND MARY J. MICKLER, APPELLEES
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T. H. Gary appeals the Circuit Court's denial of her motion to dismiss a bill filed by heirs of Maria A. Howell seeking partition of estate property. The Florida Supreme Court affirms the lower court's refusal to dismiss, holding that a motion to dismiss cannot be properly made after replication and before testimony when the answer contains new matter.
The motion to dismiss was improperly filed at that procedural stage and the trial court correctly overruled it. A motion to dismiss cannot be used to challenge a bill in equity when filed after replication and before testimony, particularly where the answer asserts new matter not responsive to the bill.
“We are not aware of any rule or practice in equity that would justify the defendant in demanding a hearing of the cause at such a stage, on bill and answer, especially when most of the statements set forth in the answer, and which defendant insists should be considered as in evidence, allege new matter not responsive to the bill and not attempted to be sustained by proof.”
Establishes the core holding that a motion to dismiss is improper when filed after replication and before testimony, particularly where the answer contains new unresponsive matter.
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Join FLexlaw to unlock all legal intelligenceMaria A. Howell died owning land in Hernando County. Her heirs—Robert J. Mickler, Mary E. Mickler (his wife), William A. Howell (represented by Mary E…
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The Chief-Justice
delivered the opinion of the court:
The bill in this case was filed by Robert J. Mickler, Mary E. Mickler, his wife, by Robert J. Mickler, her next friend, and William A. Howell, “ represented in this suit by his guardian in fact, Mary E. Mickler, as guardian ad litem, against Mi’s. Tommie H. Gary.”
The bill alleges that the complainants and defendant are the sole heirs of Maria A. Howell, deceased. That said Maria A. Howell at the time of her death was the owner of a tract of land in Hernando county, describing the same, excepting certain portions sold by Mrs. Howell to various parties, and twelve acres which complainant, Mrs. Mickler, claims Mrs. Howell gave her and put her in possession of but never made her a deed therefor. The bill prays for a partition of that part of the property owned by Mrs. Howell at the time of her death, excepting the twelve acres that she claimed were given her by her mother, Mrs. Howell, and four acres which the bill admits were given by deed to Mrs. Gary.
There was a demurrer to the bill on several grounds.
The demurrer was overruled, whereupon the defendant filed her answer, to which complainants filed a replication on the 15th day of July, 1884.
On the 9th day of September, 1884, the defendant, by her counsel, filed a motion to dismiss the bill on several different grounds.
This motion to dismiss was made after the filing of the replication to the answer by means of which the cause was at issue, and before any testimony was taken and before the three months had expii’ed which is allowed by the rules for taking testimony. We are not aware of any rule or practice in equity that would justify the defendant in demanding a hearing of the cause at such a stage, on bill and an swer, especially when most of the statements set forth in the answer, arid which defendant insists should be considered as in evidence, allege new matter not responsive to the bill and not attempted to be sustained by proof. The Chancellor we think very properly overruled the motion to dismiss.
If the bill was objectionable, a question which we decline to decide, it could not be reached by a motion to dismiss at the stage of the cause when it was made. The interlocutory order of the Circuit Court refusing to dismiss the bill is affirmed, and the cause remanded for further proceedings. Appellant will pay the costs of this appeal.
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Citator
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Keen v. Polk, 72 Fla. 106 (Fla. 1916)…issue, no replication to the answer having been filed, and the time for the taking of testimony had not begun to run, and under the rule in such case the defendants had no right to set the cause down for hearing on bill and answer. Gary v. Mickler, 21 Fla. 539. The decree appealed from is, therefore', hereby reversed at the cost of the appellees. Taylor, C. J. and Shackleford, Cockrell, Whitfield and Ellis, JJ. concur.…
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