Payne v. Kello

Davis, J.—The sole question presented by this appeal is whether or not the Chancellor erred in entering an interlocutory order denying a motion by the complainants in the Court below for further and better particulars with reference to certain matters covered by the answer of defendant Leo F. Saddlemire. The bill in this case was filed by certain alleged heirs at law of Fremont Payne, deceased, to have declared null and void a marriage alleged to have been contracted by said Payne with one Aileen Kello because of an alleged conspiracy on her part with one Leo F. Saddle-mire to victimize Payne, who was1 shown to have been about seventy-five years old, and to have exhibited “considerable susceptibility for attractive young females, such as was and still is1 Aileen Kello.” The bill asserts that Aileen Kello, before her marriage to Fremont Payne, conspired with Saddlemire to take advantage of Payne, who was alleged to have been insane at the time, though capable of appreciating feminine charms such as Aileen Kello possessed, by employing duress, coercion, intimidation and otherwise to keep Payne under their close surveillance and acquire his fortune said to have amounted to some $200,000.00. After the marriage, Saddlemire is charged with having cohabited with Payne’s wife, Aileen Kello Payne, and to have through his conspiracy and other relationships with her and her husband to have obtained large amounts of Payne’s wealth, concerning which complainants, as *833 heirs at law of the deceased Payne, asked for an accounting. The answers of Aileen Kello Payne and Leo F. Saddlemire denied all these charges and at the time of the motion hereinbefore referred to, no testimony had been taken and no right to' an accounting had been established. The motion was made under Section 25 of Chapter 14658, Acts of 1931, commonly known as the 1931 Chancery Act (Section 4902-6 C. G. L., 1932 Supplement). That Section reads as follows: “Better particulars of any matter stated in any pleading may in any case be ordered upon such terms, as to' costs and otherwise, as may be just. ’ ’ This Section is analogous to, and bears the same construction that has been placed on Rule 20 of the Federal Equity Rules which provides that a further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just. For a discussion of its application see Bacon Folding Mach. Co. v. Rotary Mach. Co., 23 Fed. (2nd) 345; Universal Oil Products Co. v. Skelly Oil Co., 12 Fed. (2nd) 271; Hopkins Federal Equity Rules (7th Ed.) 163. In this case the particulars sought were with reference to an accounting the equitable right to demand which the defendant in his answer denied. It cannot be said to he harmful and reversible error for a Chancellor to deny a motion under Section 25 of the 1931 Chancery Act for further and better particulars concerning a matter of accounting, the right to demand the accounting being resisted and not having been established at least prima facie in support of the motion. If the basis for the complainant’s right to demand an accounting from the defendant Saddlemire is hereafter *834 established, the motion for further and better particulars in the answer with respect to it, may be renewed at a later stage of the proceeding, when it should then be disposed of “as may be just” under the conditions and circumstances then appearing. The granting or denial of such motions is in every case a matter largely within the sound judicial discretion of the Chancellor, whose action thereon will not be reversed unless shown to be an abuse of discretion which has resulted in prejudice. Gimbel Bros. Inc. vs. Adams Express Co., 217 Fed. 318. The motion for supersedeas is denied, the order appealed from is affirmed, and the cause remanded far further proceedings with leave to take testimony within such time as the Chancellor shall fix. Affirmed and remanded for further proceedings. Whitfield, P.J., and Terrell, J., concur. Buford, C.J., and Brown, J., concur in the opinion and judgment. Ellis, J., concurring specially.