Baptist v. Baptist , 130 Fla. 702 ( 1937 )

Appellant has filed Motion for rehearing upon the theory that the order of this Court permitting "leave to complainant husband to amend his bill of complaint so that the same may set up any other ground of divorce" and with the further provision that the defendant wife may file answer to such amended bill is not in accord with previous decisions of this Court. The cases of Guggenheimer Co. v. Davidson, 62 Fla. 490, 56 So. 801; and Barry v. Willard, et al., 117 Fla. 236, 157 So. 669, are cited in support of that contention. What is said in those cases is not controlling. In those cases this Court condemned amended bill of complaint which set up a new and materially different cause of action. In the suit now before us the cause of action is for divorce and when the bill is amended the cause of action will be the same.

When the defendant is furnished with copy of the amended bill and given an opportunity to answer the allegations setting up other grounds of divorce, she will have had the opportunity to exercise the right of her day in court and, of course, may be heard upon the issues made by the pleadings as amended.

Therefore, the petition for rehearing should be denied.

WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur.