Meffert v. Thomas

Taylor, J. The appellee filed his bill in equity in the Circuit Court of. Marion County against the appellant for the removal of alleged clouds upon the title of appellee to certain lands located- in Marion County. The -appellant, defendant below, answered the bill denying the alleged possession and title of the complainant to the lands in question, set up adverse title in himself, by mesne conveyances from the original grantees of the State, and also title by undisturbed possession for more than seven years. General replication was filed. Several extensions of time for taking testimony in the case were granted to the parties and a master appointed to take the same, but the parties, both complainant and defendant failed to introduce any evidence, and the cause, on the motion of defendant below, was set down for final hearing on bill, answer and replication. The court entered a decree at the hearing dismissing the bill at complainant’s costs but without prejurice. From the decree dismissing the bill mthout prejudice, the defendant below appeals here, assigning as error the “without prejudice” feature of the court’s decree, contending that the decree should have been made absolute so as to operate as a final adjudication of the controversy. We cannot adjudge this to be error. Under the circumstances disclosed by the record it was a matter within the sound judicial discretion of the court below as to whether he would so shape his decree as to make it a.final adjudi [494] cation of the controversy between the parties, or dismiss the complainant’s bill without prejudice, thereby enabling him to relitigate the matter under more fortuitous conditions so far as proper attention to his case is concerned. It has been held here repeatedly, as well as elsewhere, that rulings resting within the sound judicial discretion of the trial court will not be disturbed by an appellate court unless it clearly appears that there has been an abuse of such discretion to the material detriment of the party affected by the ruling. Ahren v. Willis, 6 Fla. 359; Da-Costa v. Dibble, 40 Fla. 418, 24 South. Rep. 911; Robbins v. Hanbury, 37 Fla. 468, 19 South. Rep. 886; Long v. Anderson, 48 Fla. 279, 37 South. Rep. 216; Lykes v. Beauchamp, 49 Fla. 333, 38 South. Rep. 603. In the condition in which the record stood before the chancellor at the final hearing had in this case it was impossible, in the absence of any evidence whatever, for the court to pass upon the real merits of the controversy between the parties, and we do not think that from the standpoint of justice and equity, there was any abuse of judicial discretion in saving to the complainant the right to relitigate the matter, as was done by the decree of dismissal without prejudice. The decree of the court below in said cause is hereby affirmed at the cost of the apellant. Hocker and Parki-iill, JJ., concur. Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.