Lindsley v. McIver

Citations

• 51 Fla. 463

Syllabus

<p>1. In passing upon a demurrer to the whole bill in a suit in equity, every presumption is against the bill, but it is also true that such a demurrer operates as an admission that all the allegations in the bill which are well pleaded are true, and a demurrer to the whole bill should be overruled if the bill makes any case for equitable relief.</p> <p>2. Matters dehors the bill cannot be raised by way of demurrer but must be raised by way of plea or answer.</p> <p>3. A plea in equity setting up a former decree in bar must show that the former suit was substantially between the same parties for the same subject matter. It must set forth so much of the former bill and answer as will suffice to show 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. It is neither necessary nor proper practice to attaches an exhibit to such a plea all the testimony taken in the former suit.</p> <p>4. Where a bill in equity is filed for partition which contains allegations as to advancements having been made to the ancestress of complainants and to some of the defendants by a common ancestress of complainants’ ancestress and of the defendants, and complainants offer to bring such advancement into hotchpot and seek to have defendants do likewise, in accordance with the provisions of Section 1826 of the Revised Statutes of 1892, and certain of the defendants interpose a plea of former adjudication, which plea is set down for a hearing, and it appears' that the former suit was brought by complainants against defendants for partition alone, the bill alleging therein that complainants and defendants were tenants in common, to which some of the defendants interposed an answer, denying therein the tenancy in common and averring that complainants were coparceners and setting up the matter of advancements, testimony was taken upon the issue so made and the