Florida Mortg. & Inv. Co. v. Finlayson

United States Circuit Court for the Southern District of Florida

Florida Mortg. & Inv. Co. v. Finlayson

74 F. 671, 1896 U.S. App. LEXIS 2719

CourtUnited States Circuit Court for the Southern District of Florida

DecidedFebruary 24, 1896

StatusPublished

This text of 74 F. 671 (Florida Mortg. & Inv. Co. v. Finlayson) is published on Counsel Stack Legal Research, covering United States Circuit Court for the Southern District of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Florida Mortg. & Inv. Co. v. Finlayson, 74 F. 671, 1896 U.S. App. LEXIS 2719 (circtsdfl 1896).

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Opinion

LOCKE, . District Judge.

The allegation of the answer to which the first exception is taken alleges no fact, but is simply an argument as to what might be, under the law, presumptive notice. It is true that there is an allegation of denial, but the subsequent language shows conclusively that such denial is not a denial of fact, but a denial that the law of the case would not compel the presumption of notice. The exception should be sustained.

The portion of the answer excepted to by the second exception is solely and entirely confined to arguing a point of law, and the exception should be sustained.

The subject-matter of the answer to which the third exception is taken is the laches of the defendant. The bill had stated the date of the judgment and the date of the issue of the execution under it, and alleges laches. The answer stated no new facts, but simply alleged that the execution was sued out during the life of the judgment, and before it was barred at law. This was already apparent by the statements of the bill, and I cannot consider that this was any answer to the allegation of laches. It gives no reason why the judgment -was not enforced before, and only alleges what necessarily appears to be claimed as an inference of law, — that, since the judgment was not barred at law, there could have been no laches. There is no allegation in the answer of the insufficiency of personal property to pay the debts of the estate at the time of obtaining the judgment, or any other matter which would, outside of the existence of the judgment and its life, which fully appeared in the bill, excuse or explain away such delay as is alleged in the bill, and which is claimed to be laches. No facts were alleged which did not appear in the bill, or which could assist the court in arriving at a conclusion as to whether or not there was laches; and it cannot be held to be an answer to the allegations of the bill, as it, in its allegations, coincides with them. The exceptions should be sustained.

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LOCKE, . District Judge.

The allegation of the answer to which the first exception is taken alleges no fact, but is simply an argument as to what might be, under the law, presumptive notice. It is true that there is an allegation of denial, but the subsequent language shows conclusively that such denial is not a denial of fact, but a denial that the law of the case would not compel the presumption of notice. The exception should be sustained.

The portion of the answer excepted to by the second exception is solely and entirely confined to arguing a point of law, and the exception should be sustained.

The subject-matter of the answer to which the third exception is taken is the laches of the defendant. The bill had stated the date of the judgment and the date of the issue of the execution under it, and alleges laches. The answer stated no new facts, but simply alleged that the execution was sued out during the life of the judgment, and before it was barred at law. This was already apparent by the statements of the bill, and I cannot consider that this was any answer to the allegation of laches. It gives no reason why the judgment -was not enforced before, and only alleges what necessarily appears to be claimed as an inference of law, — that, since the judgment was not barred at law, there could have been no laches. There is no allegation in the answer of the insufficiency of personal property to pay the debts of the estate at the time of obtaining the judgment, or any other matter which would, outside of the existence of the judgment and its life, which fully appeared in the bill, excuse or explain away such delay as is alleged in the bill, and which is claimed to be laches. No facts were alleged which did not appear in the bill, or which could assist the court in arriving at a conclusion as to whether or not there was laches; and it cannot be held to be an answer to the allegations of the bill, as it, in its allegations, coincides with them. The exceptions should be sustained.

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Bluebook (online)

74 F. 671, 1896 U.S. App. LEXIS 2719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-mortg-inv-co-v-finlayson-circtsdfl-1896.