Theisen v. Whiddon

Citations

• 60 Fla. 372

Syllabus

<p>1. A decree in equity should be construed with reference to the proceedings had, and if it can be so interpreted as to comport with proper proceedings in equity it may be sustained if it is supported by the evidence submitted by all parties.</p> <p>2. Under the old equity practice a replication to a plea in equity admits the legal sufficiency of the plea as a defense to the entire bill of complaint, and puts in issue the averments of the plea. If the plea be proven a dismissal of the bill followed without reference to equities alleged but not met by the plea.</p> <p>3. The equity rule providing that “.if upon an issue the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him,” enables a complainant to obtain relief that would under the old equity practice be denied him where upon replication filed the truth of the plea is proven. The rule allows the averments of the plea to avail the defendant “as far as in law and equity they ought to avail him,” and no further.</p> <p>4. Where a decree in effect allows a plea to avail the defendant as far as in law and equity it ought, the decree will not be reversed where there is no error on the merits.</p> <p>5. While the findings and conclusions of a chancellor, where the testimony is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous.</p> <p>6. In equity, as well as at law, every presumption is in favor of the correctness of the ruling of the trial judge, and a decree rendered by him based largely or solely upon questions of fact will not be reversed, unless the evidence clearly shows that it was erroneous.</p> <p>7. Where a municipality has authority to require land owners the