Lykes v. Beauchamp

Citations

• 49 Fla. 333

Syllabus

<p>1. Where there has been a failure to take testimony in a suit in equity within the time allowed by Equity Rule No. 71, and laches in applying for an enlargement of the time in which to take it, the enlargement should not be granted, except upon a strong showing of disqualification or positive hindrance to act, or of excuse in the indulgence or assent of the other side.</p> <p>2. The matter of enlarging the time for the taking of testimony in a suit in equity is for the court below to decide, resting within the sound judicial discretion of such court, and ordinarily the determination of this question will not be disturbed by an appellate court; yet such ruling is reviewable on appeal, and where it is plainly made to appéar that there has been an abuse of this judicial discretion it is the duty of an appellate court to interpose, and correct the same.</p> <p>3. After a cause in equity has been set down for a hearing, as provided for by Equity Buie No. 86, while the court or judge may, for good cause, .open the same to allow further time for taking testimony, in accordance with the provision of such rule, yet, where no application has been made within the time fixed by Equity Rule No. 71, the circumstances should be controlling and unavoidable to excuse the delay, and an appellate court will not disturb the ruling of such court or judge in denying such application, unless it is plainly made to .appear that there has been an abuse of judicial discretion.</p> <p>4. After a cause in equity has been set down for a final hearing after issue and expiration of the time. for taking testimony, 'in accordance with the provisions of Equity Rules Nos. 85 and 86, the complainant has no absolute right to a dismissal of his bill without prejudice, this being a matter resting within the sound judicial discretion of the court below, and an appellate court will not disturb such ruling, unless it is plainly made to appear that there has been an abuse of such judicial discretion.</p> <