CHATHAM INVESTMENT COMPANY, A CORPORATION, APPELLANT,
v.
SUNSHINE INVESTMENTS, INC., A CORPORATION; M. E. GRUBER AND M. E. GRUBER, INC., A CORPORATION, APPELLEES
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In a mortgage foreclosure action, the Florida Supreme Court affirmed the dismissal of claims against two defendants who were alleged to have assumed the mortgage debt. The court held that the complainant bore the burden of proving material allegations of the bill that were contested by the answer, and having offered no proof despite the opportunity to do so, the decree in favor of defendants was proper.
The court affirmed the decree in favor of defendants, holding that the complainant bore the burden of proving every material allegation of the bill which was contested by the answer, and having offered no proof in support of the allegations against the defendants, the judgment was proper.
“Defendants have a right to set cause down for final hearing on hill and answer under the statute and court rule, the time for taking testimony having expired. The right having accrued to the defendants, and they having acted upon it, it is such a substantial right that the judge should not lightly deprive them of it in a decree based on bill and answer.”
Establishes that defendants have a substantial procedural right to final hearing on bill and answer once testimony period expires
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Join FLexlaw to unlock all legal intelligenceChatham Investment Company filed a bill to foreclose a mortgage. The bill alleged that M. E. Gruber and M. E. Gruber, Incorporated had each assumed an…
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Buford, J.
In this ease appellant filed bill to foreclose mortgage.
M. E. Gruber and M. E. Gruber, Incorporated, were made parties defendant for that as it was alleged M. E. Gruber had hy the terms of a sealed, written instrument assumed and promised to pay the indebtedness secured by the mortgage, and that M. E. Gruber, Incorporated, had likewise assumed and promised to pay the same indebtedness.
Neither the alleged written instrument by which either of the defendants M. E. Gruber or M. E. Gruber, Incorporated, became bound to pay the obligation was attached to or made a part of the bill of complaint.
M. E. Gruber and M. E. Gruber, Incorporated, filed joint and several answers in which it was denied that M. E. Gruber or M. E. Gruber, Incorporated, had by a written instrument become bound to pay the obligation. The answers were not under oath. Oath to answer was specifically waived by the complainant in his bill of complaint. No exceptions were filed to the answer. After the time had expired for taking testimony, the defendants answering set the cause down for final hearing-on hill and answer. In Zewadski v. Dyal et al., 78 Fla. 109, 82 So. R. 846, this Court say:
“Defendants have a right to set cause down for final hearing on hill and answer under the statute and court rule, the time for taking testimony having expired. The right having accrued to the defendants, and they having acted upon it, it is such a substantial right that the judge should not lightly deprive them of it in a decree based on bill and answer.”
See Equity Rule No. 85.
The burden was on the complainant to prove every material allegation of his bill which was contested by the allegations of the answer. See Indian River Mfg. Co. v. Wooten, 55 Fla. 745, 46 So. R. 185; Lykes v. Beauchamp, 49 Fla. 333, 38 So. R. 603; Hanover Fire Ins. Co. v. Hiers, 79 Fla. 408, 84 So. R. 605, and cases there cited.
The time had expired for taking testimony and the complainant had offered no proof in support of the allegations of the bill against M. E. Gruber or M. E. Gruber, Incorporated.
We find no reversible error in the order and decree appealed from and the same should be affirmed. It is so ordered.
Affirmed.
Whitfield, P. J., and-Strum, J., concur. Terrell, C. J., and Ellis and Brown, J. J., concur in-the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davis v. Wilson, 139 Fla. 698 (Fla. 1939)…, issues are made by such denials and the decision would be against the party who has taken the burden of proof according to the rules of evidence. Daniell’s Ch. PI. & Pr., 6th Am. Ed., Vol. 1, p. 850; Chatham Investment Co. v. Sunshine Investments, 98 Fla. 783, 124 Sou. Rep. 374; Whittaker v. Eddy, 109 Fla. 535, 147 Sou. Rep. 868. Where all the equities of the bill are denied by the answer, the temporary injunction granted prior to the answer is not dissolved automatically or as of course. The granting a…
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City OF Miami v. Miami Transit Co., 96 So. 2d 799 (Fla. 3d DCA 1957)…uity Rule 46, to set the cause down for final hearing on the pleadings and thus bring the cause to conclusion. Myers v. Julian, 57 Fla. 493, 48 So. 998; Zewadski v. Dyal, 78 Fla. 109, 82 So. 846; Chatham Investment Co. v. Sunshine Investments, Inc., 98 Fla. 783, 124 So. 374. At such a hearing all the proper allegations of the bill not sufficiently denied by the answer are to be taken as true and all allegations in the answer of new or affirmative matter are to be deemed denied. Moreover, where issues are m…
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Stadler v. Cherry Hill Developers, Inc., 150 So. 2d 468 (Fla. 2d DCA 1963)…Cases, and was distinct from the procedure for a decree on the pleadings, upon plaintiffs’ motion contemplated in Laws of 1931, c. 14658, § 40 and later in Equity Rule 40(h). See Chatham Inv. Co. v. Sunshine Investments, Inc., Fla.1929, 98 Fla. 783, 124 So. 374; Miami Bridge Co. v. Miami Beach Ry. Co., Fla. 1943, 152 Fla. 458, 12 So. 2d 438; Stoltenberg v. Hughes, Fla.1944, 154 Fla. 519, 18 So. 2d 475. The procedure outlined in former Rule 85 had no exact counterpart in the 1949 Equity Rules, but logicall…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lykes v. Beauchamp, 49 Fla. 333 (Fla. 1905)
- Indian River Mfg. Co. v. Wooten, 55 Fla. 745 (Fla. 1908)
- Hanover Fire Ins. Co. v. Hiers, 79 Fla. 408 (Fla. 1920)
- Zewadski v. Dyal, 78 Fla. 109 (Fla. 1919)