Watson v. Bair

Shackleford, J., (after stating the facts.)'—The following contention is made by the appellant in his brief: “Appellees answered the bill of. complaint and confessed every material allegation therein, either expressly or by failure to deny; and appellees, by their answer, then proceeded to state matters by way of avoiding the allegations of the bill That is, the appellees’ answer is by way of confession and avoidance; and, therefore, it was incumbent upon the appellees to establish the matters set up by way of avoidance by a preponderance of the evidence.” Of course, if this contention is supported by" the pleadings, as copied in the transcript of the record, the decree must be reversed. As we held in Griffith v. Henderson, 55 Fla. 625, 45 South. Rep. 1003: “When a replication is filed to an answer in equity, it puts in issue all the matters alleged in the bill of complaint that are not admitted by the answer, as well as those matters contained in the answer that are. not responsive to the bill of complaint. Matters set up in the answer that are not responsive to the bill, as new natters in opposition to or in avoidance of the allegations of the bill, must be proved by the defendant. “Allegations of a bill of complaint in equity that are admitted by the answer are taken as true and require no proof. The material allegations of the bill of complaint that are denied by the answer, are to be proved by the complainant. The averments in the answer of new mat [267] ter not responsive to the allegations of the bill of complaint, are to be proved by the defendant. “Where an equity cause is heard upon bill, answer and replication, after the time for taking testimony had expired, no testimony having been taken by either party, all the allegations of the bill of complaint that are ad-mitted in the answer are taken as true and require no proof. Any material allegations of the bill that are denied by the defendant and are not proved, cannot avail the complainant. The averments in the answer of new matter not responsive to the bill that are not proved, cannot avail the defendant.” As we read the answer of the defendants, we do not understand it as admitting all the material allegations of the bill, either expressly or by failure to deny, as the appellant contends, but construe it as a denial of material allegations, which, therefore, made it incumbent' upon the complainant to prove the same by at least a preponderance of the evidence, in order to entitle him to a decree, the bill having expressly waived the oath to the answer. See Lykes v. Beauchamp, 49 Fla. 333, 38 South. Rep. 603, wherein we held: “When a general replication is filed to an answer in chancery it thereby puts in issue all the matters alleged in the bill and denied in the answer, and it is incumbent upon the complainant to prove all such matters by at least a preponderance of the evidence, the oath to the answer being waived. “On a final hearing of a cause in equity upon bill, answer and replication, after the time for taking testimony has expired, every averment in the answer responsive to the bill is taken as true.” Also see Indian River Mfg. Co. v. Wooten, 55 Fla. 745, 46 South. Rep. 185, [268] and Langford v. Read, 69 Fla. 198, 68 South. Rep. 723. It is true, as we held in Griffith v. Henderson, supra: “Affirmative averments in an answer that are not required by the bill of complaint, that do not grow out of any transaction or facts alleged in the bill or admitted in the answer, and that are not inseparably connected therewith, constitute new matter not responsive to the bill of complaint and if not proved, cannot avail the defendant. “Where the answer in an equity cause sets up affirmative averments of new matter not stated or enquired of, and not inseparably connected with matter stated or enquired of, in the bill of complaint, and such new matter is in opposition to, or in avoidance of, the plaintiff’s demand or claim of right, and a general replication is filed, such affirmative averments are of no avail to the defendant unless proven by independent testimony.” It is likewise true, as we held in Maxwell v. Jacksonville Loan & Imp. Co., 45 Fla. 425, 34 South. Rep. 255: “Wfiere an answer is confined to such facts as are necessarily required by the bill, and those inseparably connected with them, forming a part of one and the same transaction, the answer is responsive to the bill, as well when it 'discharges, as when it charges, the defendant.” Also see Southern Lumber & Supply Co. v. Verdier, 51 Fla. 570, 40 South. Rep. 676. We are of the opinion that the complainant has failed to sustain the burden so cast by the law upon him, therefore the decree must be affirmed. See Pierce v. Brunswick & Balk Co., 23 Fla. 283, 2 South. Rep. 366; Ropes v. Jenerson, 45 Fla. 556, 34 South. Rep. 955, 110 Am. St. Rep. 79; Lykes v. Beauchamp, 49 Fla. 333, 38 South. Rep. 603. [269] Decree affirmed. Browne, C. J., and Taylor, Whitfield and Ellis, JJ., concur.