E. B. ELLIOTT COMPANY, ET AL.,
v.
MARY R. ELLIOTT, A SINGLE WOMAN
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The Florida Supreme Court reversed a chancellor's decision to enlarge the time for taking testimony in an equity case, holding that a motion filed three months after the deadline, supported only by vague allegations about a master's absence and witnesses' vacations, failed to show the good cause required by Equity Rule 71.
The chancellor abused his discretion. A motion to enlarge the time for taking testimony filed three months after the deadline, unsupported and unverified, failing to specify the length of absences or whether they were unavoidable, does not satisfy the requirement of 'clear and ample reason' mandated by Equity Rule 71. The judgment granting the enlargement was reversed, and a final decree on the pleadings should have been granted in the absence of good cause.
“His ruling however, is reviewable by this Court and where it is clearly made to appear that he has committed an abuse of discretion, such ruling will be corrected.”
Establishes the standard for reviewing a chancellor's discretionary decisions: reversal is appropriate only upon a clear showing of abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceThe parties were in an equity dispute. The chancellor had granted three months for taking testimony after issue was made. Approximately six months aft…
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This is our second consideration of this case. See Elliott v. E. B. Elliott Co., et al., 127 Fla. 158, 172 So. 686. The trans'cript in the latter appeal is made part of the record in the instant appeal which is from a decree enlarging the time for taking testimony and denying a motion for final decree on the pleadings.
Was the Chancellor guilty of an abuse of discretion in so decreeing? This is the sole question with which we are concerned here.
Equity Rule 71 which was incorporated in Section 46 of the 1931 Chancery Act provides that three months and no more, shall be allowed for the taking of testimony after issue made unless the judge shall, upon special cause shown by either party, enlarge the time.
We have repeatedly held that the matter of enlarging the time -for taking testimony in a chancery case is for the Chancellor to determine and ordinarily his discretion will not be disturbed. His ruling however, is reviewable by this Court and where it is clearly made to appear that he has committed an abuse of discretion, such ruling will be corrected.
*458The motion to enlarge the time for taking testimony was filed approximately six months after the cause was' at issue and three months after the time for. taking testimony had expired. It was unverified and unsupported except to allege that the special master appointed to take the testimony was without the State for a long period of time and that material witnesses were awáy on their vacation for a period of time during which the testimony should have been taken. It is not suggested how long the master and the witness'es were out of the State or whether their absence was unavoidable.
In granting “three months and no more’’ for the taking of testimony after the cause is at issue counsel and litigants are on notice that all evidence must be in within that time unless clear and ample reason is submitted to the Chancellor and an enlargement of the time s'ecured.
If the motion to enlarge the time in this case is to be accepted, coming as it does three months after the time fixed has expired, then there is no limit to the pretexts one may come in Court with and secure an enlargement of the time for taking testimony. The rule should be construed to require dispatch and promptness in the taking of testimony and any motion to enlarge the time must show good and unavoidable reason for not taking the testimony within the time fixed by the rule. Otherwis'e it will serve no useful purpose.
The motion for enlargement falls far short of this test so the judgment of the Chancellor on this point is reversed. Demos v. Walker, 99 Fla. 302, 126 So. 305; Hancock v. Hancock, 128 Fla. 684, 175 So. 734; Lykes v. Beauchamp, 49 Fla. 333, 38 So. 603; Magbee v. Kennedy, 26 Fla. 158, 7 So. 529. In the absence of good cause shown, final decree on the pleadings should be granted.
*459Whitfield, Brown, Buford and' Chapman, J. J., concur.
Thomas, J., not participating as case was presented before he became a member of the Court.
Cases With Similar Vibessemantic neighbors from the corpus
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Muller v. Maxcy, 74 So. 2d 879 (Fla. 1954)…other deficiencies present which warranted its denial. For example, the motion was not verified, signed by the plaintiff or supported by the affidavit or anyone who purported to know the real condition of the plaintiff. E. B. Elliott Co. v. Elliott, 137 Fla. 456, 188 So. 89, 90. While as the sole ground for an extension of time the motion stated that the “said plaintiff has suffered an attack of Coronary Thrombosis and is unable to travel to Florida,” it failed to show when the attack occurred, the degree o…
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Tropicaire Eng'g Serv. Corp. v. Chrysler Airtemp Sales Corp., 97 So. 2d 149 (Fla. 3d DCA 1957)…e of discretion was shown. The material allegations of the complaint were met and sealed off by denials in the answers, entitling the-defendants to a decree in their favor. Hancock v. Hancock, 128 Fla. 684, 175 So. 734; E. B. Elliott Co. v. Elliott, 137 Fla. 456, 188 50. 89; Strong v. Clay, Fla.1951, 54 So. 2d 193; Hewett v. Hewett, Fla.1953, 65 So. 2d 51. Cf. City of Miami v. Miami Transit Co., Fla.App. 1957, 96 So. 2d 799. The foregoing disposes of the questions raised by appellant under its assignments…
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Hewett v. Hewett, 65 So. 2d 51 (Fla. 1953)…abuse of discretion, his ruling will not be disturbed. The trouble in this case is that no cause was shown and unless a cause is shown, there is nothing upon which the Chancellor may base his discretion. In the case of E. B. Elliott Co. v. Elliott, 137 Fla. 456, 188 So. 89, 90, in an opinion by Mr. Justice Terrell, it. was held that any motion to enlarge the time should “show good and unavoidable reason for not taking the testimony within the time fixed by the rule. [*53] Otherwise it will serve no useful…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Demos v. Walker, 99 Fla. 302 (Fla. 1930)
- Hancock v. Maude Lane Hancock, 128 Fla. 684 (Fla. 1937)
- Lykes v. Beauchamp, 49 Fla. 333 (Fla. 1905)
- Magbee v. Kennedy, 26 Fla. 158 (Fla. 1890)
- Langford v. King Lumber & Mfg. Co., 127 Fla. 111 (Fla. 1937)
- Elliott v. E. B. Elliott Co., 127 Fla. 158 (Fla. 1937)