Gray v. Standard Dredging Co. , 111 Fla. 149 ( 1933 )

Section 11 of Chapter 14658, Acts of 1931 (1931 Chancery Act), applies only to nominal parties. Where, by reason of the nature of the case, a party defendant as such in an equity suit, is in reality a necessary party, and not a mere nominal party, our holding is that an express statement in the bill undertaking to make an actually necessary party a nominal party only, is to be treated as the equivalent of an entire omission of the necessary party, and dealt with accordingly in the court's decree.

A material defect of parties may be noticed at any time, upon motion by counsel, or by the Court of its own motion. Swann Holtsinger Co. v. Richardson, 78 Fla. 653, 83 Sou. Rep. 707. The practice just stated was followed in this case, and having been so followed, the decree dismissing the bill was of necessity affirmed.

The extraordinary petition for a rehearing is denied.

DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL and BUFORD, J. J., concur.

BROWN, J., concurs specially.