Finlayson v. Lipscomb

Citations

• 16 Fla. 751

Syllabus

<p>1. A cross bill is a pleading' which necessarily precedes a final decree. Up to the hearing it is proper for the court upon proper showing under oath to permit such a bill to be filed. It is proper so to do when it appears that the suit as instituted is insufficient to bring before the court all matters necessary to enable it fully to decide upon the rights of the parties.</p> <p>2. Leave to file a supplemental bill in the nature of a bill of review should not be granted in a case where it is apparent that for months before publication and hearing, a reasonable degree of diligence on the part of the party would have resulted in his ascertaining the new evidence proposed to be brought forward. Where the new evidence' appears to be the testimony of named witnesses and the other requirements of the law are complied with, the petition should be accompanied by the affidavits of such persons to the'new facts alleged', or some good reason be given why they were not produced. Some of the cases upon the subject of leave to file a' supplemental bill in the nature of a bill of review considered.</p> <p>3. Where, in a foreclosure suit, the defense is a satisfaction of a mortgage debt, and the evidence in the case upon the part of the plaintiff consistsof the debt established by judicial proceedings and outstanding up to the institution of the suit, the mortgage, and plaintiff’s denial of any payment or satisfaction, and the evidence upon the part of the defendant is his own testimony in direct conflict with this written evidence and the testimony of the plaintiff, the testimony of defendant’s son, which is uncertain and indefinite, and to part only of a conversation between the parties, and the testimony of a third party not plainly in conflict with plaintiffs testimony, the court should find for the plaintiff. Especially is this true when the assault upon the mortgage debt involves the regularity and propriety of proceedings in a collateral suit. Under the peculiar circumst