LAKE MABEL DEVELOPMENT CORPORATION, A CORPORATION, APPELLANT,
v.
H. W. BIRD, SUBSTITUTED FOR W. H. MARSHALL, APPELLEE
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Lake Mabel Development Corporation appeals the trial court's decision to strike a plea incorporated in the defendant's amended answer for failure to comply with equity pleading rules. The Florida Supreme Court affirms, holding that pleas in equity must comply strictly with Equity Rule 48, requiring both counsel certification and a complete affidavit stating the plea is well-founded and not interposed for delay.
The trial court did not err in striking the plea. Although Florida law permits defendants to insist on special matters in an answer rather than file formal pleas, any matter of defense presented as a plea must fully comply with Equity Rule 48, including certification by counsel and an affidavit stating both that the plea is well-founded and not interposed for delay.
“Equity rule number 48 is plain and concise that a plea in equity should be certified to by counsel as being in his opinion well founded in point of law and should be supported by the affidavit of the defendant, or in case of his absence from the State; of his attorney or agent, that it is not interposed for delay and that it is true in point of fact.”
Establishes the mandatory requirements for a valid plea in equity, including counsel certification and affidavit with specific elements.
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Join FLexlaw to unlock all legal intelligenceLake Mabel Development Corporation filed suit against H. W. Bird. The defendant filed an amended answer containing a plea designated as such by the pl…
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Mathews, Commissioner:
On petition for rehearing of Lake Mabel Development Corporation v. H. W. Bird, substituted for W. H. Marshall, 99 Fla. 253, 126 So. R. 356, it is suggested this Court in sustaining the court below in striking the plea incorporated in the amended answer of the defendant, overlooked the statute which provides that the defendant may, in all cases, instead of filing a formal plea or demurrer, insist on any special matter in his answer, and have the same benefit thereof as if he had pleaded the same matter or had demurred to the bill, Section 4913, Comp. Gen. Laws of Florida 1927; Section 3126, Rev. Gen. Stats. .1920, and also overlooked the fact that the plea incorporated in the amended answer was sworn to.
The plea which was stricken was in form a plea, designated as such by the pleader and was supported by affidavit that the plea in the answer contained is true.
Equity rule number 48 is plain and concise that a plea in equity should be certified to by counsel as being in his opinion well founded in point of law and should be supported by the affidavit of the defendant, or in case of his absence from the State; of his attorney or agent, that it is not interposed for delay and that it is true in point of fact.
Matters of defense dominated a plea and contained in an answer should comply with equity rule 48 requiring certificate and verification. Burroughs Land Co. v. Murphy, 131 Miss. 526, 95 So. R. 515.
Rules of practice are necessary for orderly procedure and are expected to be observed in their entirety and not simply in part. Cheaney v. Fort Lauderdale Bank & Tr. Co., 96 Fla. 699, 119 So. R. 646. The plea was lacking in the certificate of counsel and the affidavit failed to state that the plea was not interposed for delay, and no error was committed in striking the plea. Cheaney v. Fort Lauderdale Bk. & Tr. Co., supra; Burroughs Land Co. v. Murphy, supra.
This case is unlike Burr v. Powell, 63 Fla. 379, 58 So. R. 39, where the Court had before it for consideration affirmative defenses contained in an amended and separate answer which were not offered by way of pleas and which were not required to be dealt with by the complainant in any manner other than as part of the answer in the case.
The petition in this ease suggests nothing that was not fully considered by the Court on appeal.
Rehearing denied.
Per Curiam.
This cause coming on to be heard upon the petition for rehearing filed herein, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, having been adopted by the Court as its opinion, it is considered and ordered by the Court that the said petition for rehearing be and the same is hereby denied.
Terrell, C. J., and Whitfield, Ellis, Strum and Buford, J. J., concur. Brown, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Flowers v. Arthur C. Schenck for the Bank of Wauchula, 110 Fla. 256 (Fla. 1933)…was an outlaw, entitled to no consideration. The court should have ignored it. See Rule 48 Circuit Courts, Equity Actions; Taylor v. Brown, 32 Fla. 334, 13 Sou. Rep. 957; Trower v. Bernard, 37 Fla. 226, 20 Sou. Rep. 241; Lake Mabel Dev. Co. v. Bird, 99 Fla. 259, 129 Sou. Rep. 105; Cheaney v. Fort Lauderdale Bank & Trust Co., 96 Fla. 699, 119 Sou. Rep. 108. If a decree pro confesso could have been entered thus ignoring the plea it follows that it was useless for any purpose of the defendant in the cause.…
Authorities Cited
- Lake Mabel Dev. Corp. v. Bird, 99 Fla. 253 (Fla. 1930)
- Burr v. Powell, 63 Fla. 379 (Fla. 1912)
- Cheaney v. Fort Lauderdale Bank & Tr. Co., 96 Fla. 699 (Fla. 1928)