Flournoy v. Munson Bros.

Citations

• 51 Fla. 198

Syllabus

<p>1. While Section 1031 of the Revised Statutes of 1892 requires replications to be filed at the rule day next succeeding that upon which the plea shall have been filed, unless a term of court intervenes, in which event the issues must be made up by the first day thereof, it does not inhibit the plaintiff from filing the replication at any time after the plea is filed, and it could be filed on the same day the plea was filed, if plaintiff elected so to do.</p> <p>?. Rule 33 of the Rules of Circuit Court in Common Law Actions provides that where a rule day occurs in term, and such rule day is the day upon which the defendant is held to file his plea or demurrer to the declaration, any issue of fact arising upon such plea shall not be heard during that term, unless by consent of parties, but it has no applicability to pleas which have been filed prior †« the beginning of the term, and it expressly confers upon the court the power to hear and dispose of any demurrer which is interposed during the term, within its discretion.</p> <p>3. It is the duty of parties litigant and their attorneys, having business before the court, to be present during the term. When a defendant had due notice that a demurrer interposed by plaintiff to his pleas would be called up for hearing on a day during the term, it was his duty as well as that of his counsel to be present in court at the time appointed for such hearing. Where such demurrer is heard and overruled by the court, though defendant and his counsel are not present, and plaintiff, subsequent to the overruling of his demurrer, files a replication to defendant’s pleas the court can proceed to trial of the cause, and will not be held in error for so doing, in the absence of any showing of surprise or other excuse on the part of the absent party.</p>