D. J. Hobbs, Appellant, v. The Fidelity Trust Company, a Corporation, Beverly Smith, Mabel F. Smith, Russ Lumber Company, W. F. Moock and West Coast Lumber & Supply Company, a Corporation, Appellees, 96 Fla. 807

Buford, J. The appeal here is from an order entering a decree pro confesso and a final decree. The decree pro confesso was entered upon the theory that the answer of the defendant Beverly Smith presented a counter claim and therefore required an answer thereto from Hobbs the appellant. The answer of Smith fails to set up a counter claim and required no answer. Turner et al, v. Utley et al, 93 Fla. 910; 112 So. R. 837. The entry of decree pro confesso was error. The final decree against Hobbs based on the decree pro confesso is error.

The Bill of Complaint, the answer of Hobbs and the replication thereto present an issue which demands adjudication in accordance with such evidence as may be adduced touching the same. Reversed. Whitfield, P. J. and Terrell and Buford, ,J. J., concur. Ellis, C. J., and Strum and Brown, J. J., concur in the opinion and judgment.