WILLIE TERRELL VERDIER, APPELLANT,
v.
THE CITY OF TAMPA, A MUNICIPAL CORPORATLON, AND DAN F. CARLTON, APPELLEES
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Willie Verdier sought to set aside a tax sale of her Tampa property, alleging fraud and irregularity in the proceedings. The Florida Supreme Court reversed a dismissal of her equity suit, holding that the trial court erred by conducting a final hearing before the three-month period required by court rules had elapsed after all defendants were put on issue.
The court held that the trial court committed error by holding the final hearing before three months had elapsed after the cause was at issue, and that where there are multiple defendants, the cause cannot proceed to final hearing until all defendants are properly on issue. The decree was reversed and the cause remanded.
“If there be more than one defendant the court ought not to be asked to make as many final decrees in a cause as there are defendants, but usually one final decree should dispose of the rights of all the parties.”
Establishes the principle that in multi-defendant equity suits, courts should not enter separate final decrees for different defendants but rather one comprehensive decree addressing all parties.
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Join FLexlaw to unlock all legal intelligenceVerdier filed an equity suit to set aside a tax sale of her Tampa property. On remand from a prior appeal, Carlton answered the bill on August 1, 1921…
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West, J.
This is a suit in equity instituted in the circuit court of Hillsborough County to set aside a sale of a certain lot of land in the City of Tampa, in a proceeding by the City of Tampa to enforce tax liens upon the property. The alleged equity is fraud and irregularity in the proceedings in which the lot was sold. On a former appeal to this'court it was determined that there is equity in the bill and an order sustaining a demurrer to the bill was reversed. Verdier v. City of Tampa, 81 Fla. 762, 89 South. Rep. 144.
The cause having been remanded, the defendant Carlton, on August 1, 1921, filed his answer to the bill. On October 3, 1921, complainant filed her praecipe for decree pro confesso against the City of Tampa. On October 15, 1921, a special master was appointed to take and report the testimony to the court. On December 8, 1921, the defendant Carlton set the cause down for final hearing on bill and answer. On December 9, 1921, there was filed in the cause a certificate of the-clerk of the circuit court that no decree pro confesso had been entered against the City of Tampa. On the same day, upon motion of complainant, a.decree pro confesso was entered by the court against the defendant City of Tampa, and the order previously made appointing a special master was vacated. On December 13, 1921, complainant filed her written objections to the hearing on bill and answer, but the objections were overruled, and on December 31, 1921, a final decree was entered dismissing complainant’s bill of complaint. The appeal is from this final decree.
Upon the filing of his answer the cause was at issue as to the defendant Carlton (§3121, Rev. Gen. Stats.), but not so as to the City of Tampa, an apparently proper, if not necessary, party to the suit. The order dated December 9. 1921, entering a decree pro confesso against defendant City of Tampa and vacating the order appointing a special master to take testimony, recognized that the cause was prematurely set down for final hearing on bill and answer. The hearing over complainant’s objections, on December 31, 1921, was error, three months’ time allowed under the rule (Rule 71, Rules of Circuit Courts— Equity) not having elapsed after the issues were made up. In Macfarlane v. Hills, 50 Fla. 566, 39 South. Rep. 994, this court said: “In Graham v. Elmore, Harrington’s Chan. Rep. (Mich.) 265, it is held that although a cause may be in readiness for a hearing against one defendant', where there are other defendants as to whom the cause is not in readiness, the defendant who has appeared and answered can not notice the cause for a hearing, but must move to dismiss the bill for want of prosecution. The same doctrine is laid down in Vermilyea v. Odell, 4 Paige’s Chan. 121; 6 Ency. Pl. & Pr. 904-905. The reason of this rule is obvious. If there be more than one defendant the court ought not to be asked to make as many final decrees in a cause as there are defendants, but usually one final decree should dispose of the rights of all the parties. If the complainant neglects or refuses to bring all the defendants in the court upon proper issues the proper remedy of a defendant who has answered, is to move to dismiss the bill for want of prosecution. If there has been inexcusable neglect, the bill should be dismissed, or terms imposed on complainant, and in default of compliance the bill should stand dismissed as to the moving defendant.or defendants. Rules 85 and 86 of the Rules of the Circuit Court in Suits in Equity have no controlling application to a case where the issues are not made up as to all the defendants who are alleged to be interested in the matters which are litigated. ’ ’
That case is decisive of the question presented by this appeal. The parties should have been permitted, within-the time allowed by the rule, after the cafise was at issue, to submit their evidence. For the error pointed out the decree is reversed and the cause remanded for further proceeding.
Reversed
Whitmeld, P. J., and Terrell, J., concur. Taylor, C. J.', and Ellis and Browne, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hancock v. Maude Lane Hancock, 128 Fla. 684 (Fla. 1937)…Chapter 14658, Acts of 1931. “Three months’ time after the cause is at issue as to all proper parties defendant is allowed for the taking of testimony in a chancery suit. Rule 71, Rules for the Circuit Courts in Chancery,” Verdier v. City of Tampa, 86 Fla. 341, 98 Sou. 751.” Section 46 of the Chancery Act, Chapter 14658, Acts of 1931, contains a similar provision. The extension of time under this rule rests within the sound discretion of the Chancellor. Capehart v. Farmers Bank & Trust Co., 84 Fla. 690,…
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Borst v. Gale, 99 Fla. 376 (Fla. 1930)…as at issue as to those who had answered, and but for the consent of complainants, the court would have erred in dismissing the cause, the hearing being upon bill and answer. Macfarlane v. Hills, 50 Fla. 566, 39 So. R. 994; Verdier v. City of Tampa, 86 Fla. 341, 98 So. R. 75. It is the rule in this jurisdiction that irregularities in chancery practice, at one’s instance and by his consent are not available to reverse a final decree entered against him. Lovett v. Lovett, 93 Fla. 611, text 649, 112 So. R. 7…
Authorities Cited
- Macfarlane v. Hills, 50 Fla. 566 (Fla. 1905)
- Verdier v. The City of Tampa, 81 Fla. 762 (Fla. 1921)