dissenting.
The application in this case for extension of time beyond that prescribed by Equity Rule 71 for taking testimony in chancery causes, in no wise complies with the rule laid down in the latest decision of this court on the subject. In Rausch et al. v. Equitable Life Assur. Soc., 77 Fla. 846, 82 South. Rep. 295, the court reiterated the rule that the extension of time for taking testimony after the expiration of the period prescribed by the rule, is a matter in the sound judicial discretion of the lower court, which will not be disturbed unless there is a palpable abuse of such discretion. The rule was then materially narrowed in this very clear and positive language: “In a motion for an extension of time for the taking of testimony, the party applying should state why the testimony was not taken within the time and the fact which he expects to prom set forth. It is not sufficient to say that the proposed evidence is ‘admissible and pertinent to the *683issue and relates to controlling facts involved in the action.’ ”
In the case under consideration the motion did not even state that the testimony was material, admissible or pertinent, but merely recited: “Now comes the complainant, by her Solicitor W. Hunt Harris, and moves the court to extend the time for taking the testimony of the complainant to a period included within 40 days from the issuance of entry of an order extending the time to take testimony.”
. Two affidavits were filed in support of the motion, but apart from naming four persons whose testimony it was desired to take by deposition, the affidavits are devoted entirely to explaining why the testimony was not taken within the time required by the rule. Nowhere in the record does it appear what the facts were which the applicant expected to prove, as they are not set forth in the motion nor in the affidavits in support thereof.
In the Rausch case, supra> the application for extension recited among other things, “that the evidence of such witnesses is essential to the proper defense of said action, that the evidence which will be given by the said two witnesses is admissible and pertinent to the issue and relate to controlling facts.” Even these allegations, which the court said in the Rausch case were not sufficient to require the court to grant the extension, are lacking in the application in the instant case.
Without overruling the Rausch case, I cannot see how the order appealed from, extending the time for taking testimony after the expiration of the period prescribed by the rule, can be affirmed. If the essential requirements enumerated in the decision in the Rausch case are to be considered as overruled by the decision in the instant *684case, I think we should' say so in order that the profession may know what to be governed by.
' I think greater latitude should be given CircuitJudges in the matter of extending time to take testimony, and that the rule laid down in the Rausch case is too restrictive. But until overruled it should be controlling, and, if applied in the instant case, would require the reversal of the order appealed' from.
I regret that I cannot concur in the decision.