Lyle v. Winn

Citations

• 45 Fla. 419

Syllabus

<p>X. It is an established rule of chancery practice, and of pleading and practice generally, that the allegata and probata must correspond. However full and convincing may be the proof as to any essential fact, unless the fact is averred, proof alone is insufficient. All the evidence offered in a case should correspond with the allegations and be confined to the issues. Tate v. Pensacola, Gulf, Land & Devel. Co., 37 Fla. 439, 20 -South. Rep. 452, approved and followed.</p> <p>2-. In a bill for the foreclosure of a mortgage, wherein no claim for attorney’s or solicitor’s fees was set up, no allegation made that any such fees had been incurred by complainants or that they had been put to any cost or expense in the employment of an attorney for the foreclosure of the mortgage, no prayer therefor, and neither the note nor the mortgage contained any stipulation whatever for the payment of such fees, it was error to allow such fees in the decree.</p> <p>3. While the proceedings after a decree pro confesso are ex parte, and the party in default is not entitled to notice, or, of right, to be heard, yet the final decree must be proper and based upon the allegations in the bill. It was error to give the complainants more than they asked in and showed by their bill that they were entitled to. Price v. • Boden, 39 Fla. 218, 22 South. Rep. 657, approved and followed.</p> <p>4. Where it appears from the decree itself that a portion of tlie amount reported to be due by the master is “tainted with usury,” the same'being admitted by complainants., it v*as error to allow any sum whatever for interest, Chapter 4022 laws of Florida, acts of 1891, providing that “only the actual principle sum of such usurious contracts can be enforced either ait law or in .equity.” ■</p>