P. B. SPOFFORD, APPELLANT,
v.
CITY NATIONAL BUILDING, INC., A CORPORATION, APPELLEE
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This case concerns whether a plaintiff can dismiss or amend their complaint after an answer has been filed, particularly when the defendant has raised a counterclaim. The court affirmed the lower court's denial of the plaintiff's motions, finding no abuse of discretion.
The court held that the chancellor did not abuse their discretion in denying the appellant's motions to dismiss or amend the bill of complaint. The defendant's right to a complete adjudication of the counterclaim and set-off was a valid consideration.
“When a bill o'f complaint seeks to restrain a trespass on right embraced in an alleged verbal contract of employment and an answer is filed denying any such contract and setting up matters of defense in the nature of set-off or counterclaim should the complainant then be allowed to dismiss or amend his bill by striking that part relating to the cause of action and thereby prevent the defendant from obtaining a complete adjudication of the cause or should a motion to' strike the set-off or counterclaim be granted under such state of facts.”
This quote frames the central legal issue presented to the appellate court.
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Join FLexlaw to unlock all legal intelligenceThe appellant, Spofford, filed a lawsuit seeking to prevent the appellee, City National Building, Inc., from trespassing on his claimed right to use a…
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The steps in the instant ease pertinent to a disposition of this appeal are as follows: Spofford, the appellant, filed his bill of complaint in the Circuit Court of Dade County seeking to restrain City National Building, Inc., from trespassing on his right of possession and use of a penthouse located on the roof of the City National Building, a ten-story office building in the city of Miami.
Answer to the bill was duly filed, a motion to amend the bill and strike the set-off or counterclaim contained in the answer were denied and a motion by complainant to dismiss the bill without prejudice was denied. Prom that decree this appeal was prosecuted.
Three assignments of error present this question: When a bill o'f complaint seeks to restrain a trespass on right embraced in an alleged verbal contract of employment and an answer is filed denying any such contract and setting up matters of defense in the nature of set-off or counterclaim should the complainant then be allowed to dismiss or amend his bill by striking that part relating to the cause of action and thereby prevent the defendant from obtaining a complete adjudication of the cause or should a motion to' strike the set-off or counterclaim be granted under such state of facts.
The matter of granting or denying these motions involved the discretion of the chancellor who answered each of them in the negative and his answer appears fully supported by the following decisions of this Court: Tilghman Cypress Co. vs. John R. Young Co., 60 Fla. 382, 53 So. 939; Mayfield vs. Wernicke Chemical Co., 65 Fla. 113, 61 So. 191; Town of Punta Gorda vs. Charlotte Realty & Inv. Co., 93 Fla. 253, 111 So. 631; Phillips vs. Lindsay, 102 Fla. 935, 136 So. 666.
In view of these decisions no- reversible error is shown to have been committed so the decree below must be and is hereby affirmed.
*162Affirmed.
Whitfield, P.J., and Davis, J., concur.
Buford, O.J., and Brown, J., concur in the opinion and judgment.
Ellis, J., agrees to the affirmance.
On Petition for Rehearing.
The affirmance of the older of the Circuit Court refusing to permit complainant to dismiss his bill, without prejudice, and refusing to strike the defendant’s answer and counterclaim, both of which are interlocutory in character, leaves the equity cause in the court below for such further appropriate equitable proceedings as may be according to law and equity practice. It must be presumed that upon the further consideration of the equitable aspects of the controversy between the parties, the court will not make any order or decree which will 'be violative of any right appellant may have to' present to a court and jury for adjudication any purely legal claim not triable in the equitable controversy which is remanded for further proceedings, and until the court below shall violate some right of appellant in that respect, and the matter is properly brought befo're us for redress, we can make no appellate order which will decide the matter appellant attempts to present by his petition for a rehearing. Therefore the petition for rehearing should be and is hereby denied.
Rehearing denied.
Whitfield, P.J., and Terrell and Davis, J.J., concur.
Buford, O.J., and Ellis and Brown, J.J., concur in the opinion and judgment.
On Petition for Rehearing.
Per Curiam.
The affirmance of the older of the Circuit Court refusing to permit complainant to dismiss his bill, without prejudice, and refusing to strike the defendant’s answer and counterclaim, both of which are interlocutory in character, leaves the equity cause in the court below for such further appropriate equitable proceedings as may be according to law and equity practice. It must be presumed that upon the further consideration of the equitable aspects of the controversy between the parties, the court will not make any order or decree which will 'be violative of any right appellant may have to' present to a court and jury for adjudication any purely legal claim not triable in the equitable controversy which is remanded for further proceedings, and until the court below shall violate some right of appellant in that respect, and the matter is properly brought befo're us for redress, we can make no appellate order which will decide the matter appellant attempts to present by his petition for a rehearing. Therefore the petition for rehearing should be and is hereby denied.
Rehearing denied.
Whitfield, P.J., and Terrell and Davis, J.J., concur. Buford, O.J., and Ellis and Brown, J.J., concur in the opinion and judgment.
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State v. Ives, 123 Fla. 401 (Fla. 1936)…t applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Cooley’s Constitutional Limitation, page 824-25; DiLustro v. Penton, 106 Fla. 198, 142 So. 898. While freely admitting that it is difficult to construe or apply to new circumstances as they arise Section 1 of the Declaration of Rights in our Constitution and the due process and equal protection clauses of the Federal Constitution, and while…1 / 3
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Corn v. State, 332 So. 2d 4 (Fla. 1976)…ment of City of Jacksonville, 225 So. 2d 497 (Fla. 1969); McKee v. State, 203 So. 2d 321 (Fla. 1967); Finlayson v. Conner, 167 So. 2d 569 (Fla. 1964); Insurance Co. of Texas v. Rainey, 86 So. 2d 447 (Fla. 1956); and DiLustro v. Penton, 106 Fla. 198, 142 So. 898 (1932). He contends that the questioned statute appropriately applies to family residences and other buildings where the public is not invited but should not apply to public or quasi-public places because to the extent that a property owner, for his…
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State v. Wiseheart, 158 Fla. 267 (Fla. 1946)…383, 22 L.R.A. 124; Board of Commissioners v. Savage, 63 Fla. 337, 58 So. 835; Lainhart v. Catts, 73 Fla. 735, 75 So. 47; Harper v. [*281] Galloway, 58 Fla. 255, 51 So. 226, 26 L.R.A. (N.S.) 794, 19 Ann. Cas. 235; Di Lustro v. Penton, 106 Fla. 198, 142 So. 898; Phillips v. Bell, 84 Fla. 225, 94 So. 699. It can hardly be contended that the Legislature would not have passed the remainder of the Act without the inclusion of the second paragraph. To reach any other conclusion would be to say that the Legislat…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mayfield v. The Wernicke Chem. Co., 65 Fla. 113 (Fla. 1913)
- Tilghman Cypress Co. v. John R. Young Co., 60 Fla. 382 (Fla. 1910)
- Phillips v. Lindsay, 102 Fla. 935 (Fla. 1931)
- The Town of Punta Gorda v. Charlotte Realty Inv. Co., 93 Fla. 253 (Fla. 1927)