FRANCISCO GARCIA AND JOSE GARCIA, PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF F. GARCIA & BROTHER, APPELLANTS,
v.
PERFECTO GARCIA, JOSE GARCIA AND ANGEL GARCIA, PARTNERS DOING BUSINESS AS PERFECTO GARCIA AND BROTHERS, APPELLEES
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Francisco Garcia and Jose Garcia appealed a decree dissolving a temporary injunction and dismissing their bill in equity alleging trademark infringement and unfair competition by Perfecto Garcia and Brothers. The Florida Supreme Court affirmed, holding that the complainants' failure to present any proof at the final hearing on bill and answer, despite having over 18 months to do so, warranted dismissal.
The decree dissolving the injunction and dismissing the bill was proper. The complainants' failure to present proofs in support of their bill at the final hearing, after standing by for more than a year and a half without taking steps to sustain their allegations, left no alternative but to dismiss the bill.
“The complainants, in the presence of an answer denying all of the material allegations of their bill, stood by supinely for more than a year and a half and took no steps to sustain their bill by proofs”
Establishes the court's primary basis for affirming dismissal—the complainants' lack of diligence and failure to prepare evidence
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Join FLexlaw to unlock all legal intelligenceThe appellants filed a bill in equity on September 20, 1906, alleging that the appellees infringed their trade-marked rights in cigar box labels and t…
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Taylor, J.
The appellants as complainants below on the 20th day of September, 1906, filed their bill in equity in the Circuit Court of Hillsborough county against the appellees as defendants below, alleging an infringement by the defendants of the trade-marked rights of complainants in and to certain cigar box and cigar labels and to their trade name, and alleging unfair competition in trade. On 'September 27th, 1906, on the bill and accompanying affidavits temporary injunction was granted. Ota November 7th, 1906, the defendants answered the bill denying all of the material allegations thereof, and incorporated in their answer a demurrer to the bill. On January 23rd, 1907, on motion of the defendants the court made an order modifying the former injunction.
Nothing further was done in the cause until the 19th day of June, 1908, when the defendants set the cause' down for a-hearing on bill and answer, and on that date notified opposing counsel that they would call said case up before the Chancellor for final hearing on the bill and answer on the 24th day of June, 1908, and on December 30th, 1908, the court rendered a final decree dissolving the injunction theretofore granted and dismissing the complainants’ bill at complainants’ cost. To review this decree the complainants below have appealed here, assigning said decree as error. The final,decree appealed from was proper. The court, under the circumstances, could not properly have rendered any other decree. -The complainants, in the presence of an answer denying all of the material allegations -of their bill, stood by supinely for more than a year and a-half and took no steps to sustain their bill by proofs, so that when the case came before the -Chancellor for final hearing on bill and answer there was not a word of proof to sustain a single allegation in complainants’ bill. Under these circumstan'ces there was no other alternative but to make the decree appealed from, and said decree is hereby affirmed at the cost of the appellants.
Hocker and Parkhill, JJ., concur;
Whitfield, C. J., and Shackleford and Cockrell, JJ., concur in the opinion.
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Muller v. Maxcy, 74 So. 2d 879 (Fla. 1954)…ould have tolled the running of time, the cause became at issue ten days after the answer was filed, Young v. Curtis, 108 Fla. 348, 146 So. 543, and the time for taking testimony expired two months thereafter. F. Garcia & Bros. v. P. Garcia & Bros., 57 Fla. 421, 49 So. 749; Mayfield v. Wernicke Chemical Co., 65 Fla. 113, 61 So. 191. After the expiration of the two-months period, the defendants set the cause down for final hearing on the pleadings — bill and answers. They thus became entitled to a decree of…
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Ferd Meyer and Rosalyn Meyer v. Mose Solomon, 107 So. 2d 775 (Fla. 3d DCA 1958)…pleadings and other factors appearing, the Supreme Court or a District Court of Appeal has held a dismissal “with prejudice” to have been authorized in the following cases: Myers v. Julian, 57 Fla. 493, 48 So. 998; Garcia & Bros. v. Garcia & Bros., 57 Fla. 421, 49 So. 749; Mayfield v. Wernicke Chemical Co., 65 Fla. 113, 61 So. 191; Chatham Inv. Co. v. Sunshine Inv. Co., 98 Fla. 783, 124 So. 374; Young v. Curtis, 108 Fla. 348, 146 So. 543; Strong v. Clay, Fla., 54 So. 2d 193; Town of Miami Springs v. Marsh…