M. L. DEKLE, APPELLANT,
v.
W. B. BARKLEY, AS GUARDIAN OF A. T. BARKLEY, APPELLEE
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The Florida Supreme Court affirmed a lower court's decision to overrule pleas, but suggested the bill of complaint be recast due to potential defects and the mental state of the complainant.
The court held that the decree overruling the pleas was not erroneous enough to warrant reversal, but suggested the bill of complaint be recast to address deficiencies.
“Such an appeal, unlike an appeal from a final decree, does not open up the entire record, and upon such an appeal the appellant will not be heard to question other interlocutory orders entered more than six months prior to the appeal.”
Explains the scope of an appeal from an interlocutory decree.
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Join FLexlaw to unlock all legal intelligenceThis case involves an appeal from an interlocutory decree that overruled certain pleas filed in a lawsuit. The bill of complaint alleged that the real…
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Per Curiam.
This is an appeal from the interlocutory decree overruling certain pleas. Such an appeal, unlike an appeal from a final decree, does not open up the entire record, and upon such an appeal the appellant will not be heard to question other interlocutory orders entered more than six months prior to the appeal. Mattair v. Furchgott, 44 Fla. 620, 32 South. Rep. 925. Most of these pleas were defective in that they introduced no matters dehors the bill, and the others were otherwise defective, and we will not, therefore, reverse the chancellor. In view, however, of the fact alleged in the bill that the real party complainant is mentally weak and perhaps insane, we feel it our duty to suggest a recasting of the bill, lest after an expensive litigation a special ward of the court may be injured by a defective pleading that could be easily amended in the beginning. In this connection we call attention to the absence of a proper affirmative allegation that A. T. Barkley has been adjudged insane, the predicate for jurisdiction of the county judge’s court to appoint a guardian. Chap. 4720, laws of 1899; 10 Ency. Pl. & Pr. 1224; 16 Am. & Eng. Ency. Law (2nd ed.) 628. The question of parties is also one to be considered by the complainant, and also the prayers of the bill may well be further considered.
The decree is affirmed, therefore, at the cost of the appellant, with the suggestion that the bill of complaint be recast.
All concur, except Carter, J., absent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Marshall v. C. S. Young Constr. Co., 94 Fla. 11 (Fla. 1927)…ent that the delay in enforcing the right has brought about any condition disadvantageous to the defendant; besides it sets forth nothing but what appears on the face of the bill. See Keen v. Brown, 46 Fla. 487, 35 South. Rep. 401; Dekle v. Barkley, 48 Fla. 250, 37 South. Rep. 581. The plea was bad because of the defects pointed out and it was properly overruled. The objection should have been made by demurrer. The order overruling the plea and requiring the defendant to answer the bill of complaint is m…
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Mitchell v. Mason, 61 Fla. 692 (Fla. 1911)…gnment of error predicated upon this order cannot therefore, be considered, more than six months having elapsed between the entry of said order and the appeal therefrom. Futch v. Adams Bros., 47 Fla. 257, 36 [*694] South. Rep. 575; Dekle v. Barkley, 48 Fla. 250, 37 South. Rep. 581; Mattair v. Furchgott, 44 Fla. 620, 32 South. Rep. 925; Ray v. Frank, 44 Fla. 681, 32 South. Rep. 925; Steinburg. v. Richbourg, 45 Fla. 589, 33 South. Rep. 521. In the order overruling the demurrer to the bill, the court granted…
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Mugge v. Tate, 51 Fla. 255 (Fla. 1906)…Mr. Justice HOOKER and Mr. Justice PARKHILL are of opinion that the judgment should be affirmed. Under these circumstances, upon the authority of the State ex rel. Hampton v. McClung, 47 Fla, 224, [*256] 37 South. Rep. 51; Commercial Bank v. Towers, 48 Fla. 250, 37 South. Rep. 742, and Holton v. Patterson, 49 Fla. 178, 38 South. Rep. 352, a judgment will be entered in each of the above styled cause affirming the judgments to which the writs of error were taken. It is so ordered.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mattair v. Leopold Furchgott, 44 Fla. 620 (Fla. 1902)