Opinion
June 13, 1950.
Appeal from the Circuit Court, Dade County, Stanley Milledge, J.
Hendricks Hendricks, Miami, for appellant.
Wm. F. Brown, Jr., Miami, for appellee.
On petition for rehearing the contention is made that erroneous statements of fact are recited in our original opinion. For the purpose of correcting the alleged errors our original opinion has been reformed so as to read as hereinafter set forth:
The record in the case at bar discloses that the cause was at issue on July 22, 1948, and on August 20, 1948, pursuant to notice to counsel, an order was entered referring the cause to a Special Master, with directions to take the testimony of the parties and thereafter made findings and recommendations as to an appropriate decree to be entered by the Chancellor. On December 17, 1948, counsel for appellant served notice on counsel for appellee that they would apply to the Circuit Court on January 14, 1949, for an order permitting an amendment of appellant's counterclaim. Counsel for the parties later stipulated to amend the counterclaim, which was approved in part and denied in part by the Chancellor by his orders dated March 10, 1949. On July 1, 1949, a written stipulation signed by counsel of record was filed in the cause in which the time for taking testimony was extended to July 19, 1949. Testimony was taken before the Special Master on September 22, 1949, when attorney William F. Brown, Jr., appeared for the plaintiff-appellee and attorney R.A. Hendricks appeared for the defendant-appellant.
The record reflects that the time for taking testimony was extended from time to time pursuant to the written stipulations of counsel. It is possible that the time stipulated for had expired on September 22, 1949, but, regardless of this element of time, counsel for the parties appeared before the Special Master and the plaintiff below and the witnesses gave testimony and exhibits were filed. The plaintiff and his witnesses were cross-examined by counsel for the defendant-appellant at the hearing. This testimony was reduced to writing, the exhibits were filed before the Special Master, and the proceedings duly certified to the Chancellor as a true and accurate proceeding had before the Special Master. It is our view that Section 63.46, F.S.A., is here controlling, the record discloses a substantial compliance therewith, and the contention that the court lost jurisdiction of the cause is without merit.
It is next contended that the evidence adduced is legally insufficient to sustain the decree awarding the husband a divorce on the ground of extreme cruelty. We have read the testimony in light of the contention made and it is our view that the plaintiff below met the burden of proof required by law and the Chancellor did not err in awarding the husband the divorce. We find sufficient testimony to support the decree for alimony and allowance of counsel fees in the court below.
Counsel for the defendant-appellant by petition seeks an order here awarding an allowance of counsel fees incident to this appeal. The petition is denied.
Affirmed.
The petition for a rehearing is denied.
TERRELL, Acting Chief Justice, and SEBRING and HOBSON, JJ., concur.