Title 3 CHANCERY PROCEDURE Where service in a divorce case was by publication, the court acquired no jurisdiction over the defendant, where the time within which he should appear was stated in the clerk's order at over sixty days, when the law required it to be not less than thirty days nor more than fifty days. Ib. To what may have been intended as an affidavit for publication to bring in a non-resident defendant, was appended an unsigned and undated jurat. Held, that such a paper is not a sufficient predicate for constructive service. Rumeli v Tampa, 48 Fla. 112, 37 So. 563. An order for constructive service fixing the appearance day fifty-two days from the date of the order is void under a statute prescribing that the date to be fixed should be not less than thirty nor more than fifty days. Laflin v Gato, 52 Fla. 529, 42 So. 387. In constructive service the certificate of the clerk should show the posting of a copy of the order at the door of the court house. Ib. Notice by publication in equity to non-resident defendants need not be made returnable to a rule day. Smith v Elliott, 56 Fla. 849, 47 So. 387. While a paper printed in a foreign language may be a newspaper it may not be within the purview of a statute requiring the publication of Legal notices. Tylee v Hyde, 60 Fla. 389, 52 So. 968. If the defendant in a divorce suit is not a resident of the State it is not necessary for the affidavit on which constructive service is based, to state that there is no person in the State upon whom service of process could be made that would bind the defendant. Taylor v Taylor, 64 Fla. 521, 60 So. 116. The constructive service statute is broad enough to apply to any suit in equity pending in the Circuit Courts. Rome Ins. Co. v Corbett, 66 Fla. 438, 63 So. 833. When the statute providing for constructive service in equity has been complied with, the court upon motion to quash the service need not pass upon the power to enter the ultimate decree. Ib. The publication provisions of the statute authorizing constructive service of initial process in chancery, have reference to the appearance day stated in the statute, and not to rule days. Myakka Co. v Edwards, 68 Fla. 372, 67 So. 217. The requirement in the constructive service statute that publication shall be "once each week for four consecutive weeks" is not complied with where the first publication is less than four weeks or twenty-eight days prior to the appearance day fixed in the order of publication. Ib. 3112. Service on persons unknown; bill may be maintained wholly against persons unknown.-If any complainant (or his agent or attorney) in a suit in chancery for the partition of or for the quieting of title to, or clearing a cloud from, or for the enforcement of a mortgage, or lien against, or for specific performance of a contract to convey, or exchange real estate, or for the administration of the estate of a decedent or other suit in chancery relating to or affecting the title to real estate, shall state in a sworn bill that he believes that there is a person or are persons interested in the property involved in such suit whose name or names are unknown to him, and shall pray for relief against them, in such bill, he shall be entitled to process by publication to bring in such persons as parties defendant to such suit. If the said unknown persons shall be known to or believed by the complainant to be heirs, devisees, grantees, or other claimants. under a person deceased whose name is known to the complainant, the complainant shall state the name of such person in the bill, but the failure to so state shall not invalidate Ch. 5393, any decree obtained by complainant in such suit. If there be any person or persons whose names are known to the complainant interested in the said property, such person or persons shall be made a party or parties defendant to the bill; but if there be no person or persons so known, the bill may be instituted and maintained wholly against persons unknown. Where the complainant in a bill in equity believes that there are persons in esse but who are unknown to him who are interested in the property involved in such bill, in order to give the court jurisdiction over such unknown persons, he must state in his verified bill that he believes that there are persons interested in the property involved in such suit other than the known defendants whose names are unknown to him. Cobb v Hawsey, 56 Fla. 159, 47 So. 484. 3113. Order of publication; designation of unknown de2 fendants, etc.-It shall be the duty of the clerk of the court of the county in which such bills may be filed, to make upon demand of the complainant, an order requiring such persons to appear to the bill on a rule day not less than twelve weeks from the making of the order and to publish such order once a week for twelve weeks, in a newspaper in said county. Such order shall designate the unknown defendants as "all parties claiming an interest" in the property to which relief is sought, which property shall be shortly but fully described in the order. If the name of any deceased known person shall be stated in the bill, the order of publication shall describe the unknown defendants as "all parties claiming interests under (the deceased person) or otherwise" in the property which shall be described as aforesaid. June 8, 1909, Ch. 5910, (Decree pro confesso against persons unknown, see Sec. 3155.) 3114. Service by publication on non-residents in suits for specific performances.-That in all cases brought in the chancery side of the courts of this State, for the specific performance of contracts to convey or exchange real estate, the complainant or complainants, may, where the defendant or defendants are non-residents of the State of Florida, obtain service on such non-resident defendant or defendants, by publication, as is provided for in other chancery causes. (Decree pro confesso against non-resident served by publication in certain cases, see Sec. 3156.) 3115. Service by publication on non-resident infants; appointment of guardian ad litem.—That in any suit for parti tion of real property situate in this State and in any other suit concerning the title to, possession of, or any interest in any real property situate in this State, in which suit any non-resident infant may have such an interest as to make him a proper party, service of process in such suit may be perfected upon such non-resident infant by publication in the same manner provided by law for perfecting service. upon other non-resident defendants to such suits, and upon proof of such service upon such non-resident infant, the court having jurisdiction of the subject matter of the suit may appoint a guardian ad litem for such non-resident infant, in the same manner provided by law in cases where there has been personal service. ARTICLE 4. PLEADINGS IN CHANCERY. Sec. 19. 3116. (1867.) Amendment of. The complainant may, Nov. 7. 18:8, as of course, amend his bill at any time before the answer, plea or demurrer filed and without costs; but if the defendant's appearance be entered, and the defendant has procured a copy of the bill, the complainant shall furnish the defendant with a certified copy of the amendment gratis. No amendment in a matter of substance shall be allowed, as of course, to any bill which has been sworn to. Amendments in Chancery. As a general principle it may be asserted that a party seeking a specific performance must recover on the case as made in the bill, but such latitude has been allowed in the matter of amendments, as to authorize a plaintiff to amend his bill, and take decree according to the case made by the answer. Lewis v Yale, 4 Fla. 418. To an amended bill the defendant has the right to interpose a new demurrer. Bowes v Hoeg, 15 Fla. 403. Where there has been a final hearing, an appeal, a reversal of the decree and a remanding of the case, as a general rule, an amendment to an answer by the addition of facts which must have been known at the time of the filing of the original bill will not be allowed. Hart v Sanderson, 18 Fla. 103. Where the facts are set forth in the original bill, an amendment simply stating a conclusion of law may and should be treated as surplusage. Gale v Harby, 20 Fla. 171. If a complainant amends his bill so as to materially change its character after plea to it has been adjudged sufficient, he cannot on appeal taken from a final decree rendered upon the case made by the amended bill, plea, answer, replication thereto and testimony, assign as error the ruling upon the plea to the original bill. Howard V P. & A. R. R. Co., 24 Fla. 560, 5 So. 356. Under Circuit Court rules in equity courts have power on motion. notice and cause shown, to permit amendments to answers to bills in chancery, although such amendments may qualify or alter the original statements. Saunders v Richard, 35 Fla. 28, 16 So. 679. Where a sworn answer has been filed in response to a demand made therefore in the original bill such bill cannot subsequently be amended, Ch. 2004, Sec. I, Feb. 11, 1874. at least as to the same matter set up in the original bill, so as to waive a sworn answer. Springfield Co. v Ely, 44 Fla. 319, 32 So. 892. An amended answer to a bill to cancel a tax certificate should not be stricken as a mere repetition of a former answer, when it contains as additional matter a general denial of all allegations not specifically admitted and a claim for reimbursement for money paid out for taxes. Robertson v Dunne, 45 Fla. 553, 33 So. 530. The real party complainant being alleged to be mentally weak, the court on its own motion suggests a recasting of the bill of complaint, lest defects now easily amended might prove hurtful after an expensive litigation. Dekle v Barkley, 48 Fla. 250, 37 So. 581. Where no replication has been filed to the answer, the rule gives the complainant the right, upon motion without notice, to obtain an order for leave to amend his bill. Long v Anderson, 48 Fla. 279, 37 So. 216. Where complainant after filing an original bill, an amended bill, an amendment to an amended bill and a second amended bill, fails to state a cause, further amendment is not of course. Barco v Doyle, 50 Fla. 488, 39 So. 103. Where upon the final hearing, it clearly appears from the evidence that the complainant has a case, but which by reason of some omission in the allegation is not fairly brought within the issues, he will generally be permitted to amend the bill and adapt its allegations to the case as proven. Griffin v Societe, etc., 53 Fla. 801, 44 So. 342. Application to amend a bill should be made promptly after the necessity for the amendment has been discovered. Ib. Where an answer in equity states a defense, a refusal to allow some of the defendants to sign the answer may be prejudicial to the defendants and requires a reversal. Head v Lightfoot, 61 Fla. 608, 54 So. 898. Where the allegations of an amended bill are wholly inconsistent with the allegations of the original bill and attempt to assert an entirely different right of the plaintiff, and the amended bill does not state an equity in the plaintiff, an order denying a motion to strike the amended bill will be reversed. Guggenheimer v Davidson, 62 Fla. 490, 56 So. 801. If an amended bill is in effect the institution of a new and different suit a motion to strike is appropriate. Ib. A bill, amended by narrowing the prayer for relief, does not make an entirely new case. Fisher v Villamil, 65 Fla. 488, 62 So. 481. Filing Supplemental Bill.-After an interlocutory decree is enrolled, the court will grant leave to file a supplemental bill to bring forward newly discovered evidence. Owens v Love, 9 Fla. 325. The defendant having consented to the filing of a supplemental bill and demurred thereto, cannot afterwards object on the ground of irregularity. Hyer v Caro, 17 Fla. 332. The objection to a supplemental bill made at the hearing, that it seeks to maintain the suit upon new facts which have occurred since the filing of the original bill, and which make a new case, cannot be heard. Such objection is waived by omitting to demur to the bill. Crump v Perkins, 18 Fla. 353. Where the original bill for an injunction showed that the act sought to be enjoined had already been accomplished, it was not error to refuse leave to file a supplemental bill. Smith v Davis, 22 Fla. 405. A supplemental bill is considered merely as an addtiion to an original bill, and while it is often proper to introduce matter that has occurred after the institution of a suit, and of such a nature as cannot be properly the subject of an amendment, yet such new matter must not be such as to change the rights and interests of the party. Ledwith v Jacksonville, 32 Fla. 1, 13 So. 454. A supplemental bill which presents a continuation of the same trespassing, does not introduce a new subject matter of litigation. State v Black River Phos. Co., 32 Fla. 82, 13 So. 640. A complainant who had no cause of action at the filing of his original bill cannot maintain a supplemental bill on a cause that accrued thereafter. Neubert v Massman, 37 Fla. 91, 19 So. 625. 3117. (1868.) In cases of foreclosure. In the foreclosure of any mortgage the original mortgage or a certified. copy of the same, certified by the clerk of the circuit court of the county in which the same shall have been recorded, shall form a part of the bill of complaint for the foreclosure of such mortgage. THE ANSWER. Ch. 6907, Sec. 1. 3118. Answer to set forth defense to each claim asserted. Acts 1915. -The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. 3119. Certain averments, if not denied, deemed confessed; proviso; may state as many defenses as defendant deems essential.-Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. Ib. 3120. May set out set-off or counter-claim.-The answer Ib. must state, in short and simple form, any counter-claim. arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and crossclaims. 3121. When case deemed at issue.-Unless an answer Ib., Sec. 2. assert a set-off or counter-claim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set-off or counterclaim, the party against whom it is asserted shall reply within. twenty days after the filing of the answer, unless a longer, |