Opinion
February 22, 1949. Rehearing Denied April 12, 1949.
Certiorari to Circuit Court, Bay County; E.C. Welch, Judge.
Thomas Sale, of Panama City, and B.K. Roberts and Weldon G. Starry, both of Tallahassee, for petitioners.
Ausley, Collins Truett, of Tallahassee, and Robert S. Pierce, of Marianna, for respondents.
Action by William Hiram Wilson and Richard L. Wilson against the Wakulla Edgewater Company, a Florida corporation, and the Long Beach Resort, Inc., a Florida corporation. To review an order of the Chancellor striking certain parts of the answers of the defendants, the defendants bring certiorari.
Petition granted and order quashed.
See also, Fla., 36 So.2d 440.
This is a petition wherein the petitioners seek to have this Court review by certiorari the order of the Chancellor striking certain parts of an answer of the Wakulla Edgewater Co. and certain parts of the answer of Long Beach Resort, Inc., in which petitioners fail to present the stricken portions of the respective answers, together with appropriate page references to the transcript. See Leonard Bros. Transfer Storage Co. v. Douglas, 159 Fla. 510, 32 So.2d 156; Schupler v. Eastern Mortgage Co., Fla., 33 So.2d 586, Headnote No. 1; and Yandell v. Yandell, Fla., 33 So.2d 869, Headnote No. 1; Weiss v. Marcus, Fla., 34 So.2d 550, Headnote No. 1.
Our holding in Schupler v. Eastern Mortgage Co., supra, which was based on previous decisions of this Court and which has been adhered to, was to the effect that an answer will avail a defendant only so far as in equity it should, and it is error to strike matter relevant and pertinent to the equities though it would affect equities only to the extent of assessment of costs, the test being not whether the answer states a defense but whether matter is relevant or material.
The last reaffirmance of the Schupler case on this point was Westervelt v. Istokpoga Consolidated Subdrainage District, Fla., 35 So.2d 641.
It is our conclusion that the portions of the answer stricken by the chancellor come within the limitations and that it was error to grant the motion to strike.
The petition is granted and the order striking portions of the answer is quashed.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.
THOMAS and SEBRING, JJ., concur specially.
TERRELL, J., dissents.
It is my view that only that part of the order should be quashed which struck paragraphs 19, 21, and 22 of the answer.
SEBRING, J., concurs.