ISAAC MILTON AND OTHERS, APPELLANTS,
v.
WILLIAM MILTON, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this partition suit involving the estate of Mary Webster, the Florida Supreme Court reversed the lower court's decision due to multiple procedural errors, including improper striking of a demurrer, defective service of process, and an insufficiently pleaded complaint that failed to clarify the interests of minor defendants.
The court held that the demurrer was improperly struck because it does not require signing by defendants; the motion to strike was not served with proper legal proof (a private party's certificate is insufficient); and the complaint must be amended to disclose with precision the respective interests of the minor defendants and to clarify the status of the deceased son.
“This case presents many complications, due to the failure of the parties to follow the law strictly.”
Establishes the court's concern with procedural compliance as the basis for reversal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWilliam Milton filed a partition suit against other heirs of Mary Webster (deceased), including four infant heirs. One heir, Isaac Milton, was alleged…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Partition Suit cases and more on FLexlaw
Cockrell, J.
— This case presents many complications, due to the failure of the parties to follow the law strictly.
It is a suit for partition filed by William Milton against the other heirs at law of Mary Webster, deceased, four of whom were infants. It is alleged that one of the sons, Isaac Milton, was not entitled to any interest of the intestate ancestor, by reason of an advancement made to him in his life time.
There was a demurrer interposed to the bill of complaint, which was stricken by the court “upon the ground that the paper was not signed by the defendants, or either of them.” The rule does not require a signing of the de murrer by the defendants or either of them. There was a technical objection to the affidavit appended to the demurrer, in that it was made by the attorney and there was no statement therein that the defendants were absent from the State. Had the proper and specific objection been made, it might have been promptly met by timely application to supplement, or to file an affidavit strictissimi juris. There was also error in holding that “due and legal service” of the motion to strike was had. A certificate of a private party is not due and legal proof of service. .
The bill of complaint should be amended, as it does not disclose with any precision what may be the respective interest of the minor defendants — it appears only that they are grand-children of a former husband of Mary Webster. The bill further discloses that there was another son of Mary Webster who left a widow, but it does not appear except by inference whether he died before his mother, nor whether he left descendants.
The decree is reversed.
Whitfield, C. J., and Shackleford, J., concur;
Taylor, Hocker and Parki-iill, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Roebuck v. Batten, 64 Fla. 424 (Fla. 1912)…affidavit that the defendants are absent from the State, the court may Avell require notice of the motion [*432] to be given to opposing counsel so that the technical defect may be remedied and no injustice done to litigants. See Milton v. Stilton, 62 Fla. 564, 56 South. Rep. 947. The order appealed from is affirmed. Taylor, Shackleford, Cockrell and Hocker, J. J., concur. •…
-
Commercial Inv. Tr. v. Calhoun, 97 Fla. 337 (Fla. 1929)…ppeal was taken from the order and from the final decree. It appears from the record that the demurrer was undisposed of at the time the decree pro confesso was entered. The order appealed from should be reversed on authority of Milton v. Milton, 62 Fla. 564, 56 So. R. 947; Roebuck v. Batten, 54, Fla. 424, 59 So. R. 942; Johnson v. Johnson, 91, Fla. 275, 107 So. R. 342. It will be observed that the bill of complaint states no cause of action against Commercial Investment Trust Corporation, a Corporat…