JOSEPH S. JOHNSTON, ET UX.,
v.
WILLA MAY JOHNSTON, AS ADMINISTRATRIX OF THE ESTATE OF WILLIAM M. JOHNSTON, DECEASED
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The Florida Supreme Court affirmed a trial court's decision allowing an amended bill of complaint to be filed after evidence was complete, rejecting the appellant's argument that the amendment constituted an impermissible departure in pleading. The court held that amendments are permissible when they address deficiencies in the original pleading and serve the same ultimate purpose.
The amended bill did not constitute a departure in pleading because the ultimate purpose of both the original and amended bills was identical. Amendments addressing lack of allegations in the original pleading are permissible under Florida practice, and the chancellor was within his discretion in allowing the amendment.
“while there are immaterial differences in verbiage and construction the ultimate purpose of both the original and the amended bill of complaint is identical and. this is the test on which the question of departure must turn”
Establishes the controlling legal test for whether an amendment constitutes an impermissible departure in pleading
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Join FLexlaw to unlock all legal intelligenceThe case involved an amended bill of complaint filed after all evidence had been presented. The original bill contained insufficient allegations, maki…
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This appeal is from a decree permitting an amended bill of complaint to be filed after the evidence was all in and then denying a motion to dismiss, the essential question being that the amended bill constituted a departure in pleading.
The record and briefs of counsel have been examined and while there are immaterial differences in verbiage and construction the ultimate purpose of both the original and the amended bill of complaint is identical and. this is the test on which the question of departure must turn. The amended bill was made necessary by reason of lack of allegations in 'the original bill and such amendments are permissible under our practice. Wordinger v. Wirt, 112 Fla. 822, 151 So. 47; Zetrouer v. Zetrouer, 110 Fla. 312, 149 So. 343; Biscayne Realty & Ins. Co. v. Ostend Realty Co., 109 Fla. 1, 148 So. 560; Richmond v. Irons, 121 U. S. 27, 7 Sup. Ct. 788, 30 L. Ed. 864; 10 R. C. L. 494.
Other assignments have been examined and in the light of the equities shown are totally without merit. To exemplify them and the facts out of which they arise would require a long opinion that would amount to nothing more than an exemplification of our skill at the old game of logomachy for which courts and brief writers have too often indulged their fondness. Deference to laconics now and then is refreshing.
The chancellor was well within his discretion in permitting the amended bill to be filed and we are cited to no instance in which he otherwise overlooked the inherent justice of the cause. His judgment is, therefore, affirmed.
Affirmed.
Ellis, P. J., and Buford, J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
(concurring). — It appears that this whole case is the outgrowth of an attempt by Wm. Johnston to defeat judgment in a tort suit against him brought for the wrongful death of a minor. See Weeks v. Johnson, 85 Fla. 248, 95 Sou. 670. The conveyancing of property to “beat the law” as was done in this case by William M. Johnston in an effort to prevent the collection of a possible judgment against him for the alleged wrongful death of a child has little to commend itself to the consideration of a court of equity where relief is sought from the transaction. However, since the Chancellor’s conscience is satisfied about the matter I see no occasion for reversal in view of the equities as a whole the Chancellor appears to find.
On Petition for Rehearing.
On petition for rehearing we are urged to rule on several questions, some of which were ruled on by the court below and some were not. It is sufficient to say that all questions brought up on appeal from rulings of the chancellor were in effect settled in our former opinion and since the ruling of the chancellor was affirmed they were settled contrary to the contention of appellant. The fact that some questions raised were not discussed in the opinion is no ground to assume they were not considered.
As to questions brought up not ruled on by the chancellor, our former opinion was not conclusive and we must decline to rule on them now as the presumption is that the chancellor will settle them correctly and if they arise in further proceedings in the cause anything said now would 'not necessarily be conclusive of them.
Rehearing denied.
Ellis, P. J., and Buford, J., concur.
Whitfield, C. J., and Brown and .Davis, J. J., concur in the opinion and judgment.
[*374] Davis, J.
(concurring). — It appears that this whole case is the outgrowth of an attempt by Wm. Johnston to defeat judgment in a tort suit against him brought for the wrongful death of a minor. See Weeks v. Johnson, 85 Fla. 248, 95 Sou. 670. The conveyancing of property to “beat the law” as was done in this case by William M. Johnston in an effort to prevent the collection of a possible judgment against him for the alleged wrongful death of a child has little to commend itself to the consideration of a court of equity where relief is sought from the transaction. However, since the Chancellor’s conscience is satisfied about the matter I see no occasion for reversal in view of the equities as a whole the Chancellor appears to find.
On Petition for Rehearing.
Terrell, J.
On petition for rehearing we are urged to rule on several questions, some of which were ruled on by the court below and some were not. It is sufficient to say that all questions brought up on appeal from rulings of the chancellor were in effect settled in our former opinion and since the ruling of the chancellor was affirmed they were settled contrary to the contention of appellant. The fact that some questions raised were not discussed in the opinion is no ground to assume they were not considered.
As to questions brought up not ruled on by the chancellor, our former opinion was not conclusive and we must decline to rule on them now as the presumption is that the chancellor will settle them correctly and if they arise in further proceedings in the cause anything said now would 'not necessarily be conclusive of them.
Rehearing denied.
Ellis, P. J., and Buford, J., concur. Whitfield, C. J., and Brown and .Davis, J. J., concur in the opinion and judgment.
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Hollingsworth v. Arcadia Citrus Growers Ass'n, 154 Fla. 399 (Fla. 1944)…62 Fla. 490, 56 So. 801. The challenged amendment to the bill of complaint is not inconsistent with or repugnant to the original bill and the ultimate purpose of the original bill and the amendment appears to be identical, See Johnston v. Johnston, 122 Fla. 372, 165 So. 698. The amendment as made and allowed simply supplied the necessary elements of a general creditors bill and was permissible under our chancery practice. It is next contended that the record discloses an adverse interest existing between…
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Brown v. Winton, 143 Fla. 478 (Fla. 1940)…ty of a party resorting to an appellate court to make the errors complained of clearly to appear. See Flagler Finance Corp. v. Therrell, 118 Fla. 596, 159 So. 868; Atlantic Coast Line R. Co. v. Baynard, 112 Fla. 544, 151 So. 5, Johnston v. Johnston, 122 Fla. 372, 165 So. 698. We have carefully considered the record, briefs of counsel and the authorities cited, and fail to find error in the record. The order of decree apealed from is hereby affirmed. Whitfield, P. J., and Brown, J., concur. Buford, J., co…
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Meres v. Simmons, 126 Fla. 178 (Fla. 1936)…tituted a departure in pleading. It involved an agreement entered into between the parties pertaining to the main contract and in no way affects the latter except as to payments. The ultimate purpose of the suit is not changed. Johnston v. Johnston, 122 Fla. 372, 165 So. 698. The judgment below is accordingly affirmed. Affirmed. Ellis, P. J., and Terrell and Buford, J. J., concur. Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richmond v. Irons, 121 U.S. 27 (U.S. 1887)
- Biscayne Realty & Ins. Co. v. Ostend Realty Co., 109 Fla. 1 (Fla. 1933)
- Meeks v. Johnston, 85 Fla. 248 (Fla. 1923)
- Wordinger v. Wirt, 112 Fla. 822 (Fla. 1933)
- Zetrouer v. Zetrouer, 110 Fla. 312 (Fla. 1933)