Opinion
November 20, 1951. Rehearing Denied December 12, 1951.
Turnbull Senterfitt, Orlando, and Ben A. Meginniss, Tallahassee, for petitioners.
Claude L. Gray, Orlando, for respondent.
For a more comprehensive statement of the facts and issues involved in this litigation see House v. Cotton, Fla., 52 So.2d 340. Upon the going down of our mandate, the original bill was amended in the lower court because of changed conditions, and thereafter an application was made to the Chancellor for the appointment of a receiver to take over the property in litigation, operate and manage the business concern, the rents and profits, and hold the same subject to an appropriate order to be later entered in the premises. The application was by the Chancellor denied and the order, on review here by certiorari, was affirmed.
On July 5, 1951, the defendant, individually and as administrator of the Estate of Hugh M. Cotton, Sr., deceased, filed a joint and several answer to the bill of complaint as amended. The answer so filed comprised some fourteen separate paragraphs and each paragraph purported to set forth a separate defense to the bill of complaint as amended when connected with and made a part of the first defense appearing in the answer. The Chancellor below sustained a motion of the plaintiff-respondent to strike the several paragraphs of the answer directed to the amended bill of complaint. The order is dated July 31, 1951, and the several defenses numbered from two through fourteen, inclusive, were duly stricken. The defendant-petitioner, by interlocutory certiorari under Supreme Court Rule 34, 30 F.S.A., filed in this Court, now seeks to quash the aforesaid order of the Chancellor.
As the writer studies the stricken answer, it appears that defense number eight sets forth facts which, if established by competent evidence, may influence the conclusions of the Chancellor upon final hearing. Paragraph ten alleges elements of bad faith and the fourteenth paragraph sets forth inequitable conduct on the part of the plaintiff-respondent. The parties are in a court of equity and a Chancellor should have on final hearing an accurate picture, not only of the transaction of the parties, but such of their acts or conduct that may be relevant to the controversy.
The applicable rule governing the striking of an answer, in whole or in part, is viz.: "motion to strike from an answer any part of it which may be deemed to be redundant, impertinent, or scandalous is controlled by the rule which requires the denial of the motion unless the matter sought to be stricken is wholly irrelevant, can have no bearing upon the equities and no influence upon the decision either as to the relief to be granted or the allowance of costs." See Westervelt v. Istokpoga Consolidated Sub-drainage Dist., 160 Fla. 535, 35 So.2d 641; Orange State Oil Co. v. Crosby, 160 Fla. 664, 36 So.2d 273; Schupler v. Eastern Mortgage Co., 160 Fla. 72, 33 So.2d 586, and similar cases.
It therefore follows that the challenged order dated July 31, 1951, should be modified so that evidence may be adduced by the parties and considered by the Chancellor, going, first, to the question of estoppel; second, bad faith; and third, inequitable conduct as set forth in the answer under defenses eight, ten and fourteen, but as to the other portions of the answer certiorari is denied. The petition for certiorari is therefore granted in part and denied in part.
SEBRING, C.J., and TERRELL and ROBERTS, JJ., concur.