DaCosta v. Dibble

Citations

• 40 Fla. 418

Syllabus

<p>1. A pure plea in equity must be direct and positive; it must not state matters by way of argument, inference or conclusion; it must aver all facts necessary to render it a complete ■ equjtabl.e defense to the case made hv the bill, so far as the ' plea extends; and where its allegations, b.eing taken as true, > do not so far as it purports to extend, make out a full and complete defense, or where the necessary facts are to be gathered by inference alone, it will not be allowed upon argument.</p> <p>2. A plea of equity setting up a former decree in bar must show that the former suit was substantially between the same parties for the same subject mattter- It must set forth so much of the former bill and answer as will suffice to ghow that the same point was then in issue, and it should aver .that the allegations as to the title to relief against the defendant were substantially the same in the second bill as in the first.</p> <p>3. After a cause in equity has been set down for final hearing after issue and expiration of'the time for taking testimony, the complainant has no absolute right to a dismissal of his bill without a hearing upon the merits; nor is the court confined to an order of dismissal for want of prosecution in case the complainant fails to appear at or proceed with the hearing.</p> <p>■i. Although every dismissal of a bill ip equity upon final hearing is not necessarily an adjucation upon the merits, yet the rule is that where the cause is at issue and on final hearing either upon pleadings and testimony, or upon the pleadings after the time for taking testimony has expired, a dismissal of the bill by the court, even if done on the complainant’s motion, is deemed to be a dismissal upon the merits — this being a conclusive presumption from the record where the order is not made “without prejudice,” and nothing appears to show that the dismissal was upon other grounds.</p> <p>5. An appeal from a final decree in one case cannot bring up for review an o