CITY OF OCALA, APPELLANT,
v.
H. L. ANDERSON, APPELLEE
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The City of Ocala appealed a decree enjoining it from constructing a public street on Anderson's land without compensation or condemnation proceedings. The Florida Supreme Court affirmed the injunction, holding that the city's unconstitutional taking of private property without due process could be enjoined and the property restored to its original condition.
The court held that an unverified answer may be treated as a nullity and a decree pro confesso properly entered. A decree pro confesso entitles the complainant to the relief prayed for when a proper predicate has been laid in the bill. The unconstitutional taking of the complainant's real estate without condemnation or compensation may be enjoined, and it was proper to mandate restoration of the property to its original condition.
“An answer without signature, seal or verification by or for the defendant may be treated as a nullity, and a decree pro confesso entered.”
Establishes the court's holding regarding the procedural defect in the city's answer and justifies entry of decree pro confesso.
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Join FLexlaw to unlock all legal intelligenceAnderson owned land in Marion County. The City of Ocala, through its agents and officers, began constructing a public street on Anderson's land withou…
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Whitfield, C. J.
The appellee brought a suit in equity in the Circuit Court for Marion County to enjoin the City of Ocala from unlawfully constructing a public street upon appellee’s land against his consent, alleging that no condemnation proceedings had been taken to subject the property to the public use and no compensation for such use had been made or tendered. An answer without signature or seal or other verification by the defendant city or its officers or agents was disregarded and a decree pro confesso was entered by order of the court, and a final decree as prayed was rendered from which the defendant appealed.
An answer without signature, seal or verification by or for the defendant may be treated as a nullity, and a decree pro confesso entered. See Worley v. Dade County Security Co., 52 Fla. 666, 42 South. Rep. 527; Ballard v. Kennedy, 34 Fla. 483, 16 South. Rep. 327; Dudley v. White, 44 Fla. 264, 31 South. Rep. 830; Kahn v. Weinlander, 39 Fla. 210, 22 South. Rep. 653; Section 1877 General Statutes of 1906.
A decree pro confesso entitles the complainant to the relief for which a proper predicate has been laid in the bill of complaint. Price v. Boden, 39 Fla. 218, 22 South. Rep. 657; City of Orlando v. Equitable Building & Loan Ass’n, 45 Fla. 507, 33 South. Rep. 986.
The bill of complaint alleges in specific terms the title and possession of the complainant to and of the land, the acts of the officers and agents of the defendant in con- strutting a highway on the land without authority of law or notice to or permission from or compensation to the complainant, and prays for an appropriate injunction. A decree in substantial accord with the allegations and prayer and the rights of the complainant on the case made was entered.
The construction of the street as alleged is an unconstitutional taking of the complainant’s real estate that may be enjoined. Whether the city authorized its agents and officers to violate the complainant’s rights or not it is alleged they were doing so as agents and officers of the city and they were properly enjoined. Under the special and general prayer and the facts alleged it was not improper for the court to incorporate in its final decree a mandate to restore the property to its condition at the time the unlawful construction of the street thereon was begun. Taylor v. Fla. E. C. Ry., 54 Fla. 635, 45 South. Rep. 574, 127 Am. St. Rep. 155; 56 Fla. 789, 47 South. Rep. 345.
The decree is affirmed.
Shackleford and Cockrell, JJ., concur. Taylor, Hocker and Parkhill, JJ., concur in the opinion.
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Citator
Cited By (16 total)
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Wilson v. Sandstrom, 317 So. 2d 732 (Fla. 1975)…granted on the proper showing made. Taylor v. Florida East Coast R.R. Co., 54 Fla. 635, 45 So. 574, 16 L.R.A. (N.S.), 307, 127 Am.St.Rep, 155, 14 Ann.Cas. 472; Florida East Coast R. Co. v. Taylor, 56 Fla. 788, 47 So. 345; City of Ocala v. Anderson, 58 Fla. 415, 50 So. 572; 14 R.C.L. 317.’ ” A mandatory temporary injunction may be issued requiring specific performance of a contract. Bowling v. National Convoy and Trucking Co., 101 Fla. 634, 135 So. 541 (1931). See also, Price v. Gordon, 129 Fla. 715, 177…
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Bowling v. Nat'l Convoy & Trucking Co., 101 Fla. 634 (Fla. 1931)…ng as would have justified the court in specifically enforcing the contract pendente lite, altho the power of the court to make such an order unquestionably exists in proper eases, where the conditions warrant its exercise. 90 Fla. 123; 87 Fla. 466; 58 Fla. 415. The decree appealed from is therefore affirmed. Whitfield, P.J., and Terrell, J., concur. Buford, C.J., and Ellis and Brown, J.J., concur in opinion and judgment.…
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Abrams v. Paul, 453 So. 2d 826 (Fla. 1st DCA 1984)…ee also, Lybass v. Town of Ft. Myers, 56 Fla. 817, 47 So. 346; Hale v. Yeager, 57 Fla. 442, 49 So. 544. A judgment by default entitles the plaintiff to the relief for which a proper predicate has been laid in the declaration. See Ocala v. Anderson, 58 Fla. 415, 50 So. 572. If the allegations of the declaration do not form a legal basis for the judgment recovered, it will be reversed on appeal. See 6 Ency.Pl. & Pr. 118. (Emphasis added.) Appellees explicitly agree with appellants on this proposition, citi…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Taylor v. Fla. E. Coast Ry. Co., 54 Fla. 635 (Fla. 1907)
- City of Olando v. Equitable Bldg. & Loan Ass'n, 45 Fla. 507 (Fla. 1903)
- Dudley v. White, 44 Fla. 264 (Fla. 1902)
- Kahn v. Weinlander, 39 Fla. 210 (Fla. 1897)
- Hiram D. Ballard v. Kennedy, 34 Fla. 483 (Fla. 1894)
- Worley v. The Dade Cnty. Sec. Co., 52 Fla. 666 (Fla. 1906)
- Price v. Boden, 39 Fla. 218 (Fla. 1897)