W. B. DOUGHERTY AND FIRST BANK & TRUST COMPANY OF SARASOTA, A CORPORATION, AS TRUSTEES, APPELLANTS,
v.
COMMERCIAL COURT HOLDING COMPANY, A CORPORATION, AND H. J. HOELSTAD, APPELLEES
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The Florida Supreme Court affirmed an order denying a motion to strike a cross bill in an equity suit. The court clarified the procedural requirements for cross bills in equity practice, holding that a cross bill containing allegations germane to and growing out of the main cause should be permitted to stand even if not perfectly drafted.
The cross bill should not be stricken. Although the cross bill may not have been a model pleading, it contained allegations germane to and growing out of the main cause and was properly permitted to stand. The lower court did not abuse its discretion in requiring the filing of another answer.
“The function of a cross bill is to secure affirmative relief for the defendant in regard to the matter in controversy and to obtain a complete determination, among the parties, of all the elements of dispute involved in or connected with the suit.”
Establishes the fundamental purpose and scope of a cross bill in equity practice
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Join FLexlaw to unlock all legal intelligenceAppellants Dougherty and First Bank & Trust Company filed a motion to strike a cross bill filed by appellees Commercial Court Holding Company and Hoel…
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—This appeal is from an order denying a motion to strike a cross bill, the movant relying on the decision of this court in Ballard vs. Kennedy, 34 Fla. 483, 16 So. 327.
The function of a cross bill is to secure affirmative relief for the defendant in regard to the matter in controversy and to obtain a complete determination, among the parties, of all the elements of dispute involved in or connected with the suit. It is primarily a defense and must be restricted to matters of equity germane to or growing out of the original suit. Griffin vs. Fries, 23 Fla. 173, 2 So. 266, 10 R. C. L. 484.
The cross bill should be filed at the time the answer is filed or subsequent thereto but never before. It cannot be filed after the final decree. Ballard vs. Kennedy, 34 Fla. 483, 16 So. 327. Defensive matter purely in a cross bill is objectionable. It must contain averments sufficient to show ground for affirmative equitable cross relief. If it does not seek discovery on affirmative relief and sets up no defense 'other than would be available by answer it is insufficient. For these reasons it must be filed at the time of of subsequent to the answer.
A cross bill containing matters defensive and irrelevant may be stricken. Dismissal of the original bill carries with it the cross bill containing only defensive matter but the contrary rule applies if the cross bill *597seeks affirmative relief. Ballard vs. Kennedy, supra; Spencer vs. Spencer, 59 Fla. 608, 52 So. 146.
It is contended by appellants that the cross bill should have been' dismissed on authority of Ballard vs. Kennedy, supra, because it was not supported by the answer in the main cause.
We do not consider this ease on a parity with Ballard vs. Kennedy. In that case, the cross bill was stricken because there were several defendants and all but one had failed to answer the original bill. There was consequently no cross bill except as to one defendant and as to that one, it was allowed to stand. In the case at bar, at least three answers had been filed and stricken for causes not necessary to relate, suffice it to say that the order refusing to strike the cross bill required the filing of another answer immediately.
This procedure was not illegal neither do we consider it an abuse of discretion. We would not pronounce the cross bill a model pleading but it contained allegations germane to and growing out of the main cause and should have been permitted to stand.
The decree appealed from is accordingly affirmed.
Affirmed.
Whitfield, P.J., and Davis, J., concur.
Buford, O.J., and Ellis and Brown, J.J., concur in the opinion and judgment.
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Schupler v. E. Mortg. Co., 160 Fla. 72 (Fla. 1948)…tion to strike out. If found insufficient, but amendable, the court may allow an amendment upon terms or strike out the matter.” — Sec. 3122, R.G.S. For a decision under the statute, see Dougherty et al. v. Commercial Credit Holding Company (1932), 104 Fla. 595, 140 So. 470 (per Justice TERRELL). But we now have no such practice, and our statute provides that: “The defendant in his answer shall in short and simple terms set out his defenses to each claim asserted by the bill, . . . Sec. 63.34, F.S., 1941…
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Switow v. Sher, 136 Fla. 284 (Fla. 1939)…o intervene to assert his independent right, and raise new issues, he must do so by a formal original bill in the nature of a cross or supplemental •bill containing appropriate allegations.” In the case of Dougherty v. Commercial Court Holding Co., 104 Fla. 595, 140 Sou. 470, we said: “The function of a cross bill is to secure affirmative relief for the defendant in regard to the matter in controversy and to obtain a complete determination among the parties of all the elements of dispute involved in or co…
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Authorities Cited
- Hiram D. Ballard v. Kennedy, 34 Fla. 483 (Fla. 1894)
- Griffin v. Fries, 23 Fla. 173 (Fla. 1887)
- Spencer v. Spencer, 59 Fla. 608 (Fla. 1910)