MIAMI HARDWARE PAINT AND GLASS COMPANY, A CORPORATION, APPELLANT,
v.
MAGIC CITY BUILDING COMPANY, A CORPORATION, AND MAGIC CITY UNDERWRITERS INCORPORATED, A CORPORATION, AND JOEL N. OSTEEN, APPELLEES
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Miami Hardware Paint and Glass Company appealed a final decree in a mortgage foreclosure case that was rendered without the case being properly at issue and without proof of the affirmative defenses and counterclaims raised. The Florida Supreme Court reversed and remanded, holding that an intervening defendant cannot set a cause down for hearing without proper notice and sworn answers, and that unproven new matter in an answer cannot avail the defendant.
The court held that the final decree must be reversed and remanded because the cause was not properly at issue when heard, the intervening defendant lacked the right to set the cause down for hearing without proper joinder of issue, unproven new matter in an answer cannot avail a defendant, and affirmative relief cannot be granted without proof supporting it.
“When an equity cause is heard upon bill and answer, the averments in the answer of new matter not responsive to the bill that are not proven, cannot avail the defendant.”
Establishes the core principle that unproven allegations in an answer cannot support a defendant's affirmative claims in equity proceedings.
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Join FLexlaw to unlock all legal intelligenceMiami Hardware sought to foreclose a mortgage against Magic City Building Company and Magic City Underwriters. Joel N. Osteen was permitted to interve…
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Per Curiam.
After the two original defendants had filed their joint answer, the complainant filed a demurrer to the fourth “count” of the answer. This paragraph of the answer alleged that the mortgage sought to be foreclosed was without consideration and prayed that the same be declared void and cancelled. Demurrer was not the method of attacking this portion of the answer. The proper method was by exceptions, or by motion to strike out under the statute. Oneida Land Co. v. Richards, 73 Fla., 884, 75 So. R. 412; See. 3122 and 3124 Rev. Gen. Stats. This demurrer was set down for hearing, but the record does not show that any hearing or ruling thereon was had.
Thereafter a third party, Joel N. Osteen, was permitted to intervene and file an answer. The major portion of this so called answer was in the nature of a cross bill, or counter-claim, seeking affirmative relief as against both the complainants and the other two defendants, based on entirely new matter, which was not responsive to the bill. Whether such new matter and affirmative relief were of such a nature as could be set up and claimed in this case, we are not called upon, or probably authorized, to decide on this record. None of the answers were sworn to. No replication was filed. Osteen’s answer did not ask for process against his codefendants, nor does it appear that they or their solicitors were served with a copy of same under Sec. 3121 Rev. Gen. Stats., nor was there any decree pro confesso attempted to be taken under such section.
Several months later defendant Osteen set the cause down for final hearing upon the bill of complaint and the answer of the defendants, and on such hearing the court rendered a final decree, finding the complainant not entitled to relief, but that Osteen was entitled to the affirmative relief prayed by him, adjudging the mortgage null and void, and freeing the property of the lien of same. From this decree the complainant took this appeal.
It appears therefore that the cause was not properly at issue when the hearing was had and decree rendered. (See Rule 85 of Chancery Practice.) Furthermore, no proof was made to sustain the new matter set up in Osteen’s cross-bill or counter claim, or the matter of that nature alleged in the answer of the other defendants.
When an equity cause is heard upon bill and answer, the averments in the answer of new matter not responsive to the bill that are not proven, cannot avail the defendant. Griffith v. Henderson, 55 Fla., 625, 45 So. R. 1003; Florida Chanc. Jurispr., 312; Watson v. Blain, 73 Fla., 255, 74 So. R. 317. The bill waived oath to the answer of the original defendants, but it is doubtful that this waiver could be held to have extended to the intervening defendant. Ballard v. Kennedy, 34 Fla., 483, 16 So. 327; Fla. Chanc. Jurisp., 302. And the cause not being at issue, the intervening defendant did not have the right to set the cause down for hearing on bill and answers, though the complainant could have done so. Rule 85 Chanc. Prac., Gary v. Mickler, 21 Fla., 539; Lee v. Bradley Co., 44 Fla., 787; Johnson v. Sumner, 82 Fla., 377; Keen v. Polk, 72 Fla., 106; Goodyear Co. v. Daniel, 72 Fla., 489; 21 C. J., 578. The chancellor erred in granting the affirmative relief without proof.
Reversed and remanded.
Ellis, C. J., and Strum and Brown, J. J., concur. Whitfield, P. J., and Terrell and Buford, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Norris v. Jonas Eikenberry, 103 Fla. 104 (Fla. 1931)…ch i& of an equitable nature, it does not contain all the proper allegations which confer an equitable title to such relief.” The sufficiency of an answer is, tested by exceptions or by motion to strike. Miami Hdw. etc. Co. v. Magic City Bldg. Co., 96 Fla. 32, 117 So. 704; Fort Myers Development Corp. v. J. W. McWilliams Co., 97 Fla. 788, 122 So. 264. And, by a recent statute, also by demurrer. See Chapt. 13660, Laws of 1929, p. 258. Since a defendant may now set up in an answer the same matter that for…
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Phillips v. Lindsay, 102 Fla. 935 (Fla. 1931)…fendants were entitled fo affirmative relief. The averments of the answer setting up new affirmative matter, not responsive to the bill, could not [*941] avail the defendants. (Miami Hardware, Paint and Glass Company vs. Magic City Building Company, 96 Fla. 32, 117 So. 704.) The defense of usury having been set up by the defendants, the burden of proof was on them to establish it. Tucker vs. Pouts, 73 Fla. 1215, 76 So. 130. If we assume, without deciding, that the answer of Weaver-Loughridge Lumber Comp…
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Whitehurst v. May, 110 Fla. 101 (Fla. 1933)…aled from, which found the equities with the defendants at the hearing had on bill and answer after the time for taking testimony had expired was erroneous, and should be reversed on the authority of Miami Hardware, etc. Co. v. Magic City Bldg. Co., 96 Fla. 32, 117 Sou. Rep. 704; Platt v. Miller, 72 Fla. 92, 72 Sou. Rep. 482; Griffith v. Henderson, 55 Fla. 525, 45 Sou. Rep. 1003. Reversed and remanded. Whitfield, Ellis, Terrell, BrowN and Bufprd, J. J., concur.…
Authorities Cited
- Hiram D. Ballard v. Kennedy, 34 Fla. 483 (Fla. 1894)
- Lee v. The Bradley Fertilizer Co., 44 Fla. 787 (Fla. 1902)
- Goodyear Tire & Rubber Co. v. Daniel, 72 Fla. 489 (Fla. 1916)
- Griffith v. Henderson, 55 Fla. 625 (Fla. 1908)
- Onedia Land Co. v. Richard, 73 Fla. 884 (Fla. 1917)
- Watson v. Bair, 73 Fla. 255 (Fla. 1917)
- Keen v. Polk, 72 Fla. 106 (Fla. 1916)
- Gary v. Mickler, 21 Fla. 539 (Fla. 1885)
- Johnson v. Sumner, 82 Fla. 377 (Fla. 1921)