Laflin v. Gato
Laflin v. Gato
Opinion of the Court
(after stating the facts.) There are six assignments of error. Among them: 1st. That the final decree of July 21st, 1904, was erroneous; 3rd. That said decree was entered before the expiration of the time allowed for taking testimony; 4th. That said decree was entered before the expiration of the time (30 days) allowed to defendants for excepting to the Examiner’s report; 5th. The court erred in rendering its final decree before replication or issue joined; 6th. The court erred in appointing an examiner before issue was joined.
There were no exceptions to the answers, and under the rule laid down in Robbins v. Hanbury, 37 Fla. 468, text 469, 472, 19 South. Rep. 886, they were sufficient to put the complainant upon proof of the allegations of his bill. See Rule 62 of Equity Rules in Circuit Court, and section 1417 Revised Statutes of 1892. There should have been replications to the answers, and then the cause should have been conducted in the orderly way provided by law and the rules of practice. The respondents should have had opportunity for presenting their evidence if any they had, during the time provided by the rules, vis: three months. See also case of Parkin v. Safford et al. 37 South. Rep. 567—4th, 5th and 6th head notes.
In the case of Adams v. Fry, 29 Fla. 318, 10 South. Rep. 559, this could held “in a cause not under a default
The final decree is reversed and the cause remanded for further proceedings in accordance with law and the rules of practice.
Reference
- Full Case Name
- Albert S. Laflin, Hester N. Laflin, Charles A. Murphey and Mollie S. Laflin v. Eduardo H. Gato
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Where a bill is filed to foreclose a mortgage and answers thereto are filed by the defendants, one of whom a minor, answers by her guardian ad litem, and the answers are not excepted to and are sufficient to put in. issue the allegations of the bill, proper practice requires that replications should be filed to said answers and that the cause should be then conducted in the orderly way, provided by law and the rules of practice; and’ where in such a state of pleadings, an Examiner is appointed, who takes the testimony of the complainant and files the same on the day it is takien, and there is no waiver by the defendants of the time given by Rule 71 of the Rules of the Circuit Court in Suits in Equity for taking, testimony, and a final decree is made, without notice of the hearing to the defendants, on the eighth day after the Examiner filed the testimony, such a final decree is erroneous. 2. It is erroneous in making a. final decree in. a suit to foreclose a mortgage to include therein interest on the principal debt, to a time beyond the date of the decree.