MCLEOD, ET AL
v.
MERSHON, ADMINISTRATOR
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The court granted the defendant's motion for decree on bill and answer, dismissing the plaintiffs' complaint with prejudice because the plaintiffs failed to take any testimony within the prescribed time period and did not timely request an extension.
The court denied the plaintiffs' motion for extension of time and motion to strike, and granted the defendant's motion for decree on bill and answer, dismissing the complaint with prejudice because the plaintiffs failed to take any testimony and thus failed to sustain the material allegations of their complaint.
“that the plaintiffs have not taken any testimony in this cause, and therefore necessarily have failed to sustain the material allegations of their complaint which were denied by the answer”
Establishes the basis for dismissal—plaintiffs' failure to present evidence
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Join FLexlaw to unlock all legal intelligenceThe defendant filed a motion for decree on bill and answer on October 11, 1961. The plaintiffs filed a motion for extension of time for taking testimo…
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This cause came on to be heard upon the defendant’s motion for decree on bill and answer, served and filed herein October 11, 1961, the plaintiffs’ motion for extension of time for taking testimony and motion to strike defendant’s motion for decree on bill and answer, served and filed herein October 30, 1961.
The court having heard argument, examined the record and briefs submitted on request, and being fully advised in the premises, finds — that this cause has not been set for trial by the court; that the court has not entered an order fixing the time within which the testimony of the parties shall be taken; that the time for taking testimony has expired; and that good cause (as delineated in the cases hereinafter cited) was not timely shown for extending the time for taking testimony.
The court further finds that the plaintiffs have not taken any testimony in this cause, and therefore necessarily have failed to sustain the material allegations of their complaint which were denied by the answer.
Hence, on the authority of City of Miami v. Miami Transit Company (Fla. App. 3d), 96 So. 2d 799; Nystrom v. Nystrom (Fla. App. 2d), 105 So. 2d 605; Needle v. A. F. Kissinger & Associates, Inc. (Fla. App. 2d), 118 So. 2d 35; Muller v. Maxcy, Fla., 74 So. 2d 879; E. B. Elliott Co. v. Elliott, 137 Fla. 456, 188 So. 89; and Axtell v. Lyons (Fla. App. 1st), 105 So. 2d 610, 611, it is ordered and decreed—
That the plaintiffs’ motion for extension of time for taking testimony and motion to strike defendant’s motion for decree on bill and answer, be and each of them are hereby denied.
That the defendant’s motion for decree on bill and answer be and the same is hereby granted; that the defendant go hence without day, and that the complaint herein be and the same is hereby dismissed with prejudice.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- City OF Miami v. Miami Transit Co., 96 So. 2d 799 (Fla. 3d DCA 1957)
- Nystrom v. Nystrom, 105 So. 2d 605 (Fla. 2d DCA 1958)
- E. B. Elliott Co. v. Elliott, 137 Fla. 456 (Fla. 1939)
- Muller v. Maxcy, 74 So. 2d 879 (Fla. 1954)
- Axtell v. Nettie Lyons, 105 So. 2d 610 (Fla. 1st DCA 1958)
- Needle v. A. F. Kisinger & Assocs., Inc., 118 So. 2d 35 (Fla. 2d DCA 1960)