WADE H. MCRAINEY, APPELLANT,
v.
W. D. JARRELL ET AL., APPELLEE
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The Florida Supreme Court affirmed a trial court's decision to overrule a motion attacking a demurrer that was incorporated into an answer in an equity suit. The court held that a defendant may incorporate a demurrer into an answer under Section 1871 of the General Statutes, and such a demurrer is not waived by this procedure but is merely postponed to the final hearing.
The trial court properly overruled the motion. A defendant may incorporate a special matter, including a demurrer, into an answer and obtain the same benefit as if formally pleaded or demurred. A demurrer incorporated in an answer is not waived but is postponed to the final hearing, where it must be called up for disposition before the merits are addressed.
“The defendant may in all cases, instead of filing a formal plea or demurrer, insist on any special matter in his answer, and have the same benefit thereof as if he had pleaded the same matter or had demurred to the bill.”
Section 1871 of the General Statutes of 1906, which establishes the legal basis for incorporating demurrers into answers
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Join FLexlaw to unlock all legal intelligenceMcRainey appealed from an interlocutory order in an equity action. Defendants filed an answer to the bill of complaint and incorporated a demurrer the…
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Shackleford, J.
The appeal entered in this case by reason of a defective certificate to the transcript was dismissed. 59 Fla., 585, 51 South. Rep. ... A motion for reinstatement of the same on the docket of this court was made, in accordance with the provisions of Chapter 5898 of the Laws of Florida, (1909, p. 45), which was granted.
Two points are presented by the assignment of errors for our determination, both of which involve the proper construction of Section 1871 of the General Statutes of 1906, which is as follows:
“1871. (1419). May be incorporated in the answer.— The defendant may in all cases, instead of filing a formal plea or demurrer, insist on any special matter in his answer, and have the same benefit thereof as if he had pleaded the same matter or had demurred to the bill.”
The defendants filed an answer to the bill of complaint and incorporated a demurrer therein, in which they at tacked the equity of the bill. The complainant filed a motion to overrule the demurrer on the ground that it was a general demurrer going to the whole bill, in consequence such demurrer was waived or overruled by the filing of the answer. The motion also sought, in the event the court refused to overrule the demurrer, permission to have the same argued and disposed of prior to the final hearing. The court overruled both grounds of the motion, and upon this ruling all the assignments of error are predicated.
We are of the opinion that the.ruling of the trial court was entirely proper. See Budd v. Gamble, 13 Fla. 265, and Hollingsworth v. Handcock, 7 Fla., 338, and the authorities cited therein, especially Maux v. Anthony, 6 Eng. (11 Ark.) 411, and 1 Daniell Ch. Pl. & Pr. (6th ed.) star page 715; So. L. I. & T. Co. v. Lanier, 5 Fla., 110; 58 Am. Dec., 448; Alden v. Penney, 12 Fla., 348, 378. Also see 6 Ency. of Pl. & Pr. 415, 416, and authorities cited in notes. While the demurrer so incorporated in the answer is postponed to the final hearing, it must be called up for disposition at that time before the merits are gone into. Further discussion seems unnecessary. The interlocutory order appealed from must be affirmed.
Whitfield, C. J., and Cockrell, J., concur;
Taylor, Hocker and Parkhill, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Terra Ceia Ests. v. Nannie E. Taylor, 68 Fla. 261 (Fla. 1914)…er it necessary to discuss the assignments in detail. A demurrer was incorporated in its answer by the Terra Ceia Estates to the amended bill for partition which does not seem to have been specifically passed upon. As we held in McRainey v. Jarrell, 59 Fla. 587, 52 South. Rep. 304: “When a defendant in a suit in equity incorporates in his answer to the bill a general demurrer, whereby he attacks the equity of the bill, it is only at the final hearing of the cause that such demurrer can be called up for dis…
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Head v. Lightfoot, 61 Fla. 608 (Fla. 1911)
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Liebmann v. Ada Johnson, 93 Fla. 283 (Fla. 1927)…the Chancellor should be sustained upon authority of the opinion in the case of Farrall v. Forest Investment Company, 73 Fla. 191, 74 Sou. 216, and it is so ordered. What is here said is not in conflict with the rule laid down in McRainey v. Jarrell 59 Fla. 587, 52 Sou. 304; Terra Ceia Estates v. Taylor, 68 Fla. 261, 67 So. 169. Affirmed. Whitfield, P. J., and Terrell, and Buford J. J., concur. Elias, C. J., and Brown, J. J., concur in the opinion.…
Authorities Cited
- The S. Life Ins. & Tr. Co. v. Augustus H. Lanier, 5 Fla. 110 (Fla. 1853)
- Alden v. Pinney, 12 Fla. 348 (Fla. 1868)
- Hollingsworth v. Wm. Handcock and Rigdon Brown, 7 Fla. 338 (Fla. 1857)
- Josiah T. Budd v. Gamble, 13 Fla. 265 (Fla. 1869)
- McRainey v. Jarrell, 59 Fla. 585 (Fla. 1910)