GRACE OLMSTEAD BORST, AND IDA OLMSTEAD COOK, APPELLANTS,
v.
JAMES GALE, WILLIAM D. GALE, AND MARIE B. GALE; APPELLEES
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Appellants challenged a decree dismissing their bill to quiet title to real estate, arguing the trial court erred by hearing the case on bill and answer without their consent. The Florida Supreme Court affirmed, holding that parties who agree to an irregular procedure cannot later complain of it on appeal.
The court affirmed the decree, holding that although the court would have erred in dismissing the case on bill and answer without consent, the complainants' own agreement to this procedure bars them from complaining of the irregularity on appeal. A party who consents to an irregular procedure cannot later use that irregularity as a basis for reversal.
“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.”
States the governing legal principle that consent to procedural irregularities bars later challenge on appeal.
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Join FLexlaw to unlock all legal intelligenceAppellants filed a bill in circuit court to quiet title to real estate, naming the Gales and other defendants. The three named Gale defendants answere…
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Davis, Commissoner:
A bill was filed by the appellants in the circuit court in and for Putnam County, for the purpose of quieting the title to real estate, and the appellees, James Gale, William D. Gale, and Marie B. Gale, together with numerous other parties, if living and if-dead, their unknown heirs at law, legatees, devisees or grantees, were therein named as defendants t'o the suit.
James, William D. and Marie B. Gale, appeared in the cause and answered the bill. Several months after the said answer was filed, the court made a decree in said cause which reads as follows:
‘ ‘ This cause having come on to be heard this 25th day of January, A. D. 1928, at chambers, in Palatka, Florida, there being present J. N. Blackwell, representing the complainants, and Julian C. Calhoun, representing the defendants, James Gale, William D. Gale and Marie B. Gale; and the timé for taking testimony having long since lapsed, by agreement of counsel, this cause was set down for hearing upon the bill and answer; and
“Whereas, after due consideration of the pleadings herein, the court doth find that the allegations of the bill of complaint against the defendants, James Gale and William D. Gale, and Marie B. Gale have not been sustained; it is,
“Thereupon, ordered, adjudged and decreed by the court that said cause be, and the same is, hereby dismissed at the cost of the complainants, and that said cause is dismissed without prejudice to the complainants. ’ ’
The only reason urged, in brief of the appellants for a reversal of the decree is that the complainants did not set down the case on bill and answer. After a cause is at issue and the time for taking testimony has elapsed, unless further time1 for the taking of testimony is agreed upon by the parties or allowed by the court, rule 85 for the government of the circuit courts in equity, authorizes either party, at any time to set a cause down for a hearing.
The record does not show that any of the defendants, except those named in the decree had ever been served with process or had appeared to and answered the bill, nor does it show that prior to the making of said decree, the bill was dismissed as to them.
This cause was not at issue as to all the defendants, though it was 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. 768; Thompson v. Kyle, 39 Fla. 582, 23 So. R. 12.
The complainants did not have to agree that the cause be set down for a hearing upon bill and answer, but having so agreed, they cannot now complain that the hearing was had.
The decree of the circuit court is affirmed.
Per Curiam.
The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and decreed by the Court that the decree of the court below should be, and the same is hereby, affirmed.
Terrell, C. J., and Whitfield, Ellis, Strum, Brown and Buford, J. J., concur.
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Jackson v. State, 359 So. 2d 1190 (Fla. 1978)…efense.2 But for the insistence of appellant [*1194] himself, the fact would not have come before the jury. Appellant cannot initiate error and then seek reversal based on that error. Gagnon v. State, 212 So. 2d 337 (Fla.3d DCA 1968); Borst v. Gale, 99 Fla. 376, 126 So. 290 (1930). Later that evening, after appellant had informed the sheriff that he wished to speak to a lawyer, but before a lawyer was summoned, appellant asked to speak to the chief investigator concerning the charges against him. At this…
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Lesperance v. Lesperance, 257 So. 2d 66 (Fla. 3d DCA 1971)…lien and fixing the amount of the fee, it was error induced by counsel for the appellant and she will not now be heard to complain of the trial court’s action in accordance with the request and stipulation of her counsel. Borst v. Gale, 99 Fla. 376, 126 So. 290; Arsenault v. Thomas, Fla.App.1958, 104 So. 2d 120; 2 Fla.Jur., Appeals, § 313; Accord, Gagnon v. State, Fla.App.1968, 212 So. 2d 337. Therefore, for the reasons above stated, the orders here under review be and the same are hereby affirmed. Affir…
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E. L. Hawkins de bonis non of the Estate of Wise Perry v. Perry, 146 Fla. 766 (Fla. 1941)…as entered at the instance and request of the plaintiff, the appellant here, he cannot be heard to challenge the correctness of such order. See Dorman v. Dorman, 125 Fla. 280, 169 Sou. 867; Marx v. Withers, 119 Fla. 692, 160 Sou. 662; Borst v. Gale, 99 Fla. 376, 126 Sou. 290. The appeal from that order will not serve as the vehicle to bring up for review orders as to which the time for appeal has expired. It, therefore, follows that the appeal should be dismissed and it is so ordered. Brown, C. J., Whitf…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lovett v. Lovett, 112 So. 768 (Fla. 1927)
- Thomson v. Kyle, 39 Fla. 582 (Fla. 1897)
- Macfarlane v. Hills, 50 Fla. 566 (Fla. 1905)
- Verdier v. The City of Tampa, 86 Fla. 341 (Fla. 1923)