Opinion
Opinion filed September 20, 1932.
An appeal from the Circuit Court for Palm Beach County; C. E. Chillingsworth, Judge.
Joe Hatfield, for Appellants;
Wideman, Wideman Wardlaw, for Appellee.
The appeal in this case is from an order of the Chancellor dismissing the bill of complaint without prejudice after the case had been set down on bill and answer and the court had denied a motion for enlargement of time in which to take testimony.
The appellants contend that it was abuse of discretion for the court to dismiss the bill without prejudice. Appellants maintain that the bill should have been dismissed so as to cut off further litigation of the rights of the parties as alleged in the pleadings. We think the order appealed from should be affirmed on authority of the opinions and judgments in the cases of Meffert vs. Thomas, 51 Fla. 492, 40 So. 764; Tilghman Cypress Co. vs. Young, 60 Fla. 382, 53 So. 939; Mershon vs. Bernard, 79 Fla. 253, 84 So. 95.
It is well settled that this Court will act on presumption of the correctness of the Chancellor's rule and will not change it, except in the clear case of mistake or hardship, particularly where the Chancellor was in position to understand fully what weight should be given to excuses for delay based on local conditions and usages. Magbee vs. Kennedy, 7 So. 529; 26 Fla. 158.
The order appealed from should be affirmed and it is so ordered.
Affirmed.
BUFORD, C.J., AND WHITFIELD, TERRELL, BROWN AND DAVIS, J.J., concur.
ELLIS, J., dissents.
I think that the bill should have been dismissed as a finality. Dismissing without prejudice is merely prolonging the litigation without any showing in the record for its justification.