ENNALLA R. CAPEHART AND GEORGE G. SOMERVILLE, EXECUTORS OF THE LAST WILL AND TESTAMENT OF JAMES CAPEHART, DECEASED, APPELLANTS,
v.
FARMERS BANK & TRUST COMPANY, A BANKING CORPORATION UNDER THE LAWS OF THE STATE OF FLORIDA, AND T. T. REESE, APPELLEES
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This case involves an appeal concerning orders that extended the time for taking testimony in an equity suit without proper notice or showing of cause. The appellate court reversed these orders, emphasizing the need for judicial discretion and adherence to rules regarding extensions.
Yes, the trial court erred in granting the extensions. The orders were made ex parte, without notice, and without the required showing of special cause, thus constituting an abuse of judicial discretion.
““Three months, and no more, shall be allowed for the taking of 'testimony after the cause is at issue, unless the Judge shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing.””
This quote states the rule governing the time for taking testimony in equity suits and the conditions under which it can be extended.
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Join FLexlaw to unlock all legal intelligenceThe defendants in a discovery and accounting suit obtained multiple extensions for taking testimony through ex parte motions without notice to the pla…
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Whitfield, J.
This appeal was taken from six orders made upon motion of the defendants without notice to opposite parties, extending the time for taking testimony and from other interlocutory orders in a suit for discovery and accounting involving fiduciary relations. ,. :-
.Equity Rule 71 provides: “Three months, and no more, shall be allowed for the taking of 'testimony after the cause is at issue, unless the Judge shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing.”
The matter of extending the time for the taking of testimony in an equity suit is for the court below to decide, resting within the sound judicial discretion of such court, and ordinarily, the determination of this question will not be disturbed by an appellate court, yet such ruling is reviewable on appeal, and where it is plainly made to appear that there has been an abuse of this -judicial discretion, it is the duty of an appellate court to interpose and correct the same.” Manassee v. Dutton Bank, 70 Fla. 427, 70 South. Rep. 363 ; Long. v. Anderson, 48 Fla. 279, 37 South. Rep. 216.
In this case the testimony of the complainants was duly taken. No notice of the several applications by the defendants for extension was given, and the orders granting repeated extensions of time for-taking testimony-were made upon mere ex parte motion of counsel for the defendants, with no showing whatever of “special cause”- for an extension as is expressly required by the Rule above quoted. Such orders were on this record clearly erronous and the orders appealed from are reversed with directions to enter an appropriate decree on the testimony already taken, unless a proper showing is promptly made as required by the rule for a limited extension of time for taking further testimony that may be essential to a just decree in the 'cause.
Reversed.
Taylor, C. J., and Ellis, Browne and West, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hancock v. Maude Lane Hancock, 128 Fla. 684 (Fla. 1937)…86 Fla. 341, 98 Sou. 751.” Section 46 of the Chancery Act, Chapter 14658, Acts of 1931, contains a similar provision. The extension of time under this rule rests within the sound discretion of the Chancellor. Capehart v. Farmers Bank & Trust Co., 84 Fla. 690, 94 Sou. 864; Manassa v. Dutton Bank, 70 Fla. 427, 70 Sou. 363. “Where there has been failure to take testimony within the time allowed by Equity Rule 71, and laches in applying for enlargement of time to take it, the enlargement should not be gran…
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Olaf Zetterlund and Jeanette Zetterlund v. Stratton, 90 Fla. 435 (Fla. 1925)…ng evidence attached thereto is ample basis for the order appealed from. Manassee v. Dutton Bank, 70 Fla. 427, 70 South. Rep. 363; Long v. Anderson, 48 Fla. 279, 37 South. Rep. 216. Affirmed on the authority of Capehart v. Farmers Bank & Trust Co., 84 Fla. 690, 94 South. Rep. 864; O’Gara v. Hancock, 76 Fla. 1, 79 South. Rep. 167; Braxton v. Liddon, [*437] 55 Fla. 785, 46 South. Rep. 324; McMillan v. Warren, 59 Fla. 578, 52 South. Rep. 825; Rausch v. Equitable Life Assr. Soc. of United States, 77 Fla. 846,…
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Woodward v. Woodward, 95 Fla. 396 (Fla. 1928)…and, therefore, should have been vacated because it was not supported by proof law [*400] fully taken and considered. Maxwell v. The Jacksonville Loan & Improvement Co., 45 Fla. 425, 34 Sou. 255; Capehart et al. v. Farmers Bank and Trust Co. et al., 84 Fla. 690, 94 Sou. 864. The decree setting aside the final decree of divorce and dismissing the cause should be affirmed, and when this is done the cross assignments of error are thereby disposed of, and it is so ordered. Affirmed. . Whitfield, P. J., and…
Authorities Cited
- Long v. Herbert L. Anderson for Elizabeth B. Anderson, 48 Fla. 279 (Fla. 1904)
- Manassee v. The Dutton Bank, 70 Fla. 427 (Fla. 1915)