Taylor v. City of Lake Alfred , 195 So. 2d 548 ( 1967 )

PER CURIAM.

The final decree of the Circuit Court validating the City of Lake Alfred water and sewer revenue certificates is here on appeal.

The petition for validation was filed June 30, 196'6, the Order to Show Cause, the acknowledgment of service by the State Attorney, the Answer of the State Attorney, were filed July 1. The proof of publication was filed July 19, the Answer of respondents, appellants here, and Motion to Dismiss were filed on July 20. On July 21 the Court denied the Motion to Dismiss, found the Answer of the respondents to be insufficient, denied the respondents’ offer to amend and entered the Final Decree.

The Answer of the State Attorney prayed proof of the allegations of the petition. The Answer of the appellants denied the construction of the water and sewer extensions are essential to the health and welfare of the City. The Chancellor struck the Answer of the respondents, holding it to be insufficient as a defense to the petition for validation and denied the offer of respondents to amend the said Answer, holding the proposed amendment would not make the Answer effective as a defense.

Respondent asserts as errors the Chancellor’s Order striking their Answer as insufficient and his denial of their offer to amend. We do not disagree with the Chancellor’s action in striking the Answer and, since the offer amendment was made orally and therefore does not appear in the record we are precluded from considering whether it would have constituted a defense.

In view of the State Attorney’s unchallenged Answer, timely filed, proof of the allegations of the petition was essential before a decree could be validly entered.

The testimony of officials sustaining the factual allegations of the complaint and the offering into evidence of necessary documentary exhibits was essential to the validation and the entry of a Final Decree. This was not done.

The cause is remanded for further proceedings consistent herewith.

THORNAL, C. J., THOMAS, ROBERTS, DREW and CALDWELL, JJ., and WAYBRIGHT, Circuit Judge, concur. ERVIN, J., dissents.