R. O. DENNARD, APPELLANT,
v.
COLON MONROE, APPELLEE
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Dennard appealed from a decree pro confesso entered against him after his demurrer to an equity bill was overruled. The Florida Supreme Court held that a defendant has a substantial right to answer a bill of complaint after a demurrer is overruled, and a decree pro confesso cannot be entered without a default in answering.
A defendant has a substantial right to answer a bill of complaint after a demurrer is overruled, and a decree pro confesso should not be entered until there is a default in answering under the applicable rule or as ordered by the court. The trial court erred in entering the decree pro confesso without allowing Dennard to answer.
“upon the overruling of any plea or demurrer, the defendant shall be required to answer the bill, or so much thereof as is covered by the plea or demurrer, by the next succeeding rule day, or at such other period as, consistently with justice and the rights of the defendant, the same can in the judgment of the court be reasonably done; in default whereof, the bill shall be taken against him pro confesso”
Establishes that Equity Rule 51 requires the defendant to answer before a decree pro confesso can be entered
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Join FLexlaw to unlock all legal intelligenceMonroe brought suit in equity to enforce a mortgage lien on personal property to satisfy a $900 note. Dennard demurred to the bill of complaint on gro…
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Whitfield, J.
Monroe brought suit to enforce a mortgage lien upon personal property to satisfy a note for : $900.00. Dennard demurred to the bill of complaint on •grounds in effect that (1) it contains .no equity, (2) the remedy at law is adequate, (3) there is a non-joinder of necessary parties. The court overruled the demurrer and thereupon entered a decree pro confesso against the defendant. There was final decree for the complainant based on the decree pro confesso and the defendant appealed therefrom as well as from an order denying a motion to vacate the decree pro confesso. Equity Rule 51 provides that “upon the overruling of any plea or demurrer, the defendant shall be required to answer the bill, or so much thereof as is covered by the plea or demurrer, by the next succeeding rule day, or at such other period as, consistently with justice and the rights of the defendant, the same can in the judgment of the court be reasonably done; in default whereof, the bill shall be taken against him pro aonfesso, and the matter thereof proceeded in and decree accordingly.”
The demurrer was not wholly irrelevant or frivolous so as to justify striking it as being frivolous or improper or violative of any rule or order of the court. It was expressly “overruled” by the court, which is the proper ruling where a demurrer is insufficient in law.
The express provision of the rule that upon overruling a demurrer to a bill of complaint in equity “the defendant shall be required to answer the bill” confers a substantial right as well as imposes a specific duty upon the defendant, and a decree pro aonfesso should not be entered until there is a default in answering under the rule or as required by a special order made in the premises. Under the rule the right of the defendant to answer the bill of complaint is not a mere formal or technical right, but it confers authority to answer the bill as provided in the rule which is a substantial and duly prescribed right that cannot be lawfully taken from a defendant except by due course of procedure.
The decree is reversed.
Shackleford, C. J., and Taylor, Cockrell and Hócker, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Bronstein v. Roth, 64 So. 2d 272 (Fla. 1953)…ause in its opinion it presented no cause of action. Both the plaintiff and defendant have a right—under reasonable regulations—to have a record of the fact that no cause of action or defense, as the case may be, is presented. In Dennard v. Monroe, 66 Fla. 254, 63 So. 428, we said, in speaking on this general subject: “The demurrer was not wholly irrelevant or frivolous- so as to justify striking it as being frivolous or improper or violative of any rule or order of the court. It was expressly ‘overruled…
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Sheppard v. Livingston, 73 Fla. 644 (Fla. 1917)…ere formal or technical right, but it confers authority to answer the bill as provided in the rule which is a substantial and duly prescribed right that cannot be lawfully taken from a defendant except by due course of procedure.” Dennard v. Monroe, 66 Fla. 254, 63 South. Rep. 428. A defendant has a right to answer after an issue of fact, joined on a plea, has been determined against him. See Equity Rule 51; Westervelt v. Library Bureau, 118 Fed. Rep. 824. The quoted rule was not applied in Kennedy v. Cre…