Williams v. Wetmore , 51 Fla. 614 ( 1906 )

Hockek, J.,

(after stating the facts.) Two assignments of error are insisted upon here by the appellant. In substance, they are, first, that the court of equity had no jurisdiction of the subject matter of this suit; and second, that the court erred in hearing the cause without the testimony of the defendant.

As to the first, the solicitor for appellant admits that he would not have raised this question if he had had the benefit of his testimony before the Chancellor which had been taken by the examiner, but which the examiner did not report. The record shows that the defendant below and appellant here not only did not object below in any way to the jurisdiction of the court, but consented to the determination of the matters involved by the equity court. There can be no dispute as to the law that where a court has no jurisdiction whatever- of the subject matter of the litigation, consent cannot confer jurisdiction, and that the question may be raised at any time. It is also true, we think, that where the jurisdiction has been consented to, that appellate courts do not feel called upon to make a rigorous and critical examination in order to discover the lack of jurisdiction. We think this is peculiarly true of that class of cases to which the case at bar belongs. An examination of the reported cases upon the jurisdiction of equity in matters of confusion of boundaries will show .a varied application of that jurisdiction. In the case of Doggett v. Hart, 5 Fla. 215, this court held: “A court of equity will not entertain jurisdiction in cases of confusion of boundary upon the ground merely that the boundaries are in controversy, but will require that there should be some equity superinduced by the act of the parties, such as fraud, gross negligence or misconduct on the part of those whose duty it is to preserve and perpetuate such boundaries.” The doctrine of this case was followed and applied in Pendry v. Wright, 20 Fla. 828. In the case of Boyd v. Dowie, 65 Barb. (N. Y.) 237, there is an extensive examination of the English and Afaerican authorities, and the conclusion of the court is that a “confusion of boundaries o'f lands exists when by the deeds thereof, or the acts of the owners or occupants of the same, the boundaries cannot be ascertained with reasonable certainty by one party alone, or except by the judgment or opinion of men, after an examination of the deeds and the premises with a surveyor, aided perhaps by the examination of witnesses.” In this case the confusion was caused by the descriptions in the deeds made by the party under whom both litigants claimed title, and the jurisdiction of equity was sustained. Under the circumstances of the case at bar we do not propose to go into a lengthy examination of authorities but refer the student to the case of Guice v. Barr, 130 Ala. 570, 30 South. Rep. 563, and the note to Stuart’s Heirs v. Coalter, 15 Am. Dec. 745, and the text books on Equity Jurisprudence. In the case of Hine v. City of New Haven, 40 Conn. 478, it was held that where it was manifest that there was a want of equity jurisdiction, because there was a complete remedy at law, the court might of its own motion dismiss the bill; but where the question is in doubt, and there has been a trial on the merits, the court will not of its own motion dismiss the bill, nor will the objection first taken in the appellate court be regarded with favor. In the case of Tubb v. Fort, 58 Ala. 277, the question of the jurisdiction of the court of equity was raised for the first time in the appellate court, after having been litigated on- its merits in the court below. Chief Justice BRICKELL, speaking for the court, consisting of himself and Justices STONE and MANNING, says on page 282: “The general rule of practice in courts of equity, has long been settled, that if the subject matter of the suit is not without the jurisdiction of a court of equity, and there may be circumstances under which it would be competent for the court to grant relief, the objection that there is an effectual and complete remedy at law, must be taken by demurrer, and comes too late at the hearing. In its very nature, the objection is of that class, which ought to be taken in the earliest stage of the suit, before costs have accumulated, or by the lapse of time irreparable injury may result.” In 1 Daniell’s Ch. P. & Pr., (6th Am. Ed.) p. 555, the author says: “If the objection on the ground of jurisdiction is not taken in proper time either by demurrer or plea, before the defendant enters into his defense at large, the court having the general jurisdiction will exercise it, except in cases where no circumstances whatever can give the court jurisdiction.” In the case of DeCottes v. Clarkson, 43 Fla. 1, 29 South. Rep. 442, this court held: “Where no objection is made in any manner to the jurisdiction of a court of chancery in a partition suit and the case is regularly brought to final hearing and decree on bill, answer and testimony, the appellate court will not consider objections as to jurisdiction raised for the first time on appeal, where the record fails to disclose an entire absence of jurisdiction over the subject matter.” See, also, Howell v. Commercial Bank, 51 Fla. 460, 40 South. Rep. 76, and Brown v. Lake Superior Iron Co., 134 U. S. 530, 10 Sup. Ct. Rep. 604; Reynes v. Dumont. 130 U. S. 354, 9 Sup. Ct. Rep. 486; 11 Notes on U. S. Reports (Rose) 743. In the latter under the statement that “where the subject is of a class of which equity has cognizance, legal remedy cannot be urged for the first time on appeal” a large number of cases are cited. In the case at bar, the admitted facts show there was much confusion and contention between the parties as to the boundaries of the respective lots which they claimed to own. The lengths of the east and west, lines of the original tract of land of Parker, from whom both parties derive their titles, are not stated. These lines run from posts on one side to posts on the other side. It is possible that this caused the contention between the Robinsons and the complainants as to whether the “old fence line,” or the “deed line” was the true line between them. Again, the west line of the lot conveyed to Cash by Parker was the center of Hogan’s Creek. The lot conveyed by Parker to Joseph Robinson, which seems to be the lot claimed by the defendant Williams is described as beginning at the northeast corner of the lot sold Cash, but its westerly line does not seem to follow Hogan’s Creek, though the defendant claims all the land between Hogan’s Creek and the land of complainant, which covers the Eichelberger lot. After several years of contention, several ineffectual law suits, the trial and conviction of defendant for an assault on the plaintiff’s wife which grew out of the contention over the boundary question, the parties having come to a more definite understanding of their mutual claims agreed that the case was one properly triable in chancery. The bill was filed as well as an answer by the defendant wherein it was practicaly agreed that the case was one of equity cognizance, and here, on appeal for the first time the question of equity jui’isdiction is raised. Under these circumstances we do not feel called upon to say more than that it is not manifest that the court of equity did not have jurisdiction of the subject matter, and thus leave the jurisdiction where the parties have placed it.

We now consider the second assignment of error that the court erred in hearing the cause without the testimony of defendant. The report of the examiner shows that the parties agreed to divide the fees between them, so that each should pay for the direct examination of his own witnesses, and the cross examination of his opponent’s witnesses; that complainant promptly paid his proportion of the costs and that the defendant, the appellant, did not pay his proportion though several times requested so to do. This was the situation on March 21st, 1905, about five months after the time for taking the testimony had expired, when on the demand of complaint the examiner filed his report of the complainant’s testimony. The cause was set down for hearing by the complainant on March 24th, and notice thereof given the appellant, and he protests against the hearing because the examiner had not filed the defendant’s testimony. The appellant took no steps whatever to procure from the court a ruling upon the examiner’s action. The maxim that the law protects the vigilant, not the sleeping, it seems to us, applies to this situation. The mere protest of the appellant presented nothing upon which the chancellor could rule. The complainant’s action in setting the cause down was within his rights, and as against these rights, the defendant opposes nothing which will authorize a reversal of the decree appealed from.

We find no reversible error in this record, and the decree appealed from is affirmed.

Taylor and Parkhill, JJ., concur. Shackleford, C. J., and Wi-iitfield, J., concur in the opinion. Cockrell, J., being disqualified, took no part in. this decision.