Crump v. Perkins

Citations

• 18 Fla. 353

Syllabus

<p>1. The objection to a supplemental bill in equity made at the hearing, that it seeks to maintain the suit upon new facts, which have occurred since the filing of the original bill, and which make a new case, cannot be heard. Such an objection is waived by omitting to demur to the hill upon that ground and going into a hearing upon the merits.</p> <p>2. Upon sustaining a plea it is not a matter of course for the court to direct or award an issue. The plaintiff should ask leave to put the facts of the plea in issue, or should undertake to reply, if he so desires. Where the notice by the plaintiff of the hearing upon the plea was accompanied by a notice of hearing upon 'the merits to be had next day, and for a final determination, the court very properly presumed that the plaintiff, instead of wishing to reply to the plea, desired the action of the court to be final.</p> <p>3. A plea and answer in support thereof is one pleading. Such answer is no distinct part of the defense. It must he treated as a part of the plea. While a replication in such case restricted to the answer is improper, yet after it is treated by the court and the parties as putting in issue the inatters of fact alleged in the plea and answer, and after testimony applicable to such issue, and setting the cause down for final hearing and decree upon the merits, this court will not, upon appeal, reverse such decree, unless there is error upon the merits.</p>