C. LYMAN SPENCER, APPELLANT,
v.
MARION B. SPENCER, APPELLEE
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The Florida Supreme Court affirmed an order extending the time for taking testimony on a cross-bill, holding that the dismissal of the original divorce bill did not automatically dismiss the cross-bill which sought affirmative relief.
No, the dismissal of the original bill does not automatically dismiss a cross-bill if the cross-bill alleges new matter and seeks affirmative relief.
“It is urged that there was error in extending the time for taking testimony because the dismissal of the original bill carried with it the cross bill.”
This quote frames the central legal argument of the appeal.
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Join FLexlaw to unlock all legal intelligenceThe original bill for divorce was dismissed. The defendant filed a cross-bill seeking divorce on other grounds, alimony, and injunctions. The trial co…
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Whitfield, C. J.
This appeal is from an order extending the time for taking testimony on a cross bill, the original bill in the cause having been dismissed on motion of the complainant. It is urged that there was error in extending the time for taking testimony because the dismissal of the original bill carried with it the cross bill. This contention is not tenable because the cross bill is not merely defensive in its character, but it alleges new matter relating in part at least to the same subject matter, and asks affirmative relief thereon; therefore the dismissal of the original bill does not of itself dismiss the cross bill. Ballard v. Kennedy, 34 Fla. 483, 16 South. Rep. 327; Price v. Stratton, 45 Fla. 535, text 547, 33 South. Rep. 644. The original bill is for divorce on the ground of desertion. The cross bill alleges matters upon which is asked a divorce on other statutory grounds, alimony, injunctions as to property rights, and the custody of a child. The propriety of the cross bill cannot be tested on this appeal. No abuse of discretion is shown in extending the time for taking-testimony, and the order appealed from is affirmed.
Shackleford and Cockrell, J.. 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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Spencer v. Spencer, 61 Fla. 777 (Fla. 1911)…ginal bill carried with it the cross bill,, and that the judge had therefore no authority to have testimony taken under the cross bill. This court held that the dismissal of the original bill did not carry with it the cross bill. Spencer v. Spencer, 59 Fla. 608, 52 South. Rep. 146. Mrs. Spencer’s attorney having lost sight of the new bill which had been filed against her, failed to appear, answer [*779] or plead thereto, and a decree pro confesso was obtained on this bill on the 4th of October, 1909. Afte…
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Dougherty v. Commercial Court Holding Co., 104 Fla. 595 (Fla. 1932)…elevant 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 [*597] seeks 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 Ball…
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Royal Indem. Co. v. Bd. of Bond Trs. of Special Rd. & Bridge Dist. No. One of Alachua Cnty., 110 Fla. 338 (Fla. 1933)…not necessarily parry with it the cross-bill, or the answer in the nature of a cross-bill praying affirmative relief, but it remains for disposition as if it had been an original bill. Ballard v. Kennedy, 34 Fla. 483, 16 So. 327; Spencer v. Spencer, 59 Fla. 608, 52 So. 146; Houston v. Maddox, 53 N. E. 599. For the errors above pointed out, the order appealed from must be reversed and the cause remanded. Reversed and remanded. Whitfield, Ellis, TeRREll and Buford, J. J., concur. Davis, C. J., Disqualifi…
Authorities Cited
- Price v. Harrison D. Stratton, 45 Fla. 535 (Fla. 1903)
- Hiram D. Ballard v. Kennedy, 34 Fla. 483 (Fla. 1894)