GRACE PHILLIPS JOHNSON, A FEME SOLE, ET AL., APPELLANTS,
v.
EMIL METZINGER, ET AL., APPELLEES
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The Florida Supreme Court denied a motion to dismiss in a foreclosure case brought by Grace Phillips Johnson against Emil Metzinger. The court held that most of the grounds for dismissal raised substantive questions that could not be resolved on a motion to dismiss and must await consideration on the merits, while rejecting arguments that the appeal was frivolous or taken in bad faith.
The court denied the motion to dismiss, holding that it could not resolve most of the substantive questions raised on a motion to dismiss without conducting the same thorough analysis required for decision on the merits, and that the appeal was not frivolous enough to justify dismissal.
“From an inspection of the record we are unable to say that the appeal is frivolous; and, therefore, we would not be justified in dismissing the appeal on grounds numbered 5 and 6.”
Establishes the court's rejection of arguments that the appeal was frivolous or taken in bad faith as a basis for dismissal.
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Join FLexlaw to unlock all legal intelligenceGrace Phillips Johnson, described as a feme sole, brought a foreclosure suit. The defendants moved to dismiss the appeal on seven grounds, including c…
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This case is before us on -motion to dismiss. Briefs have been filed both for appellants and appellees. The motion to dismiss is based upon seven (7) grounds, as follows:
“Ground No. 1.
Complainant had no right to bring this suit for foreclosure.
Ground No. 2.
Complainant did not make any showing for receivership in her foreclosure suit.
Ground No. 3.
The receiver has no right of appeal from the orders appealed from.
Ground No. 4.
Grace Phillips Johnson has no right of appeal from the orders appealed from.
Ground No. 5.
The appeal is, upon its face, frivolous and taken for delay only.
Ground No. 6.
The appeal is, upon its face, taken in ill faith.
Ground No. 7.
The record shows that the suit is a collusive one, and that the complainant did not come into court with clean hands.”
From an inspection of the record we are unable to say that the appeal is frivolous; and, therefore, we would not be justified in dismissing the appeal on grounds numbered 5 and 6.
To determine whether or not the suit should be dismissed upon either of the other grounds would require the Court to give to the record the same thorough and careful consideration which would be required to reach a determination of the case on its merits and to do so would *165be in effect to advance tbe case on tbe docket for consideration on its merits.
The question presented aside from the allegation that the appeal is frivolous should be determined upon consideration of the case upon its merits and not upon consideration on motion to dismiss.
The motion to dismiss is denied.
Buford, C.J., and Ellis and Brown, J.J., concur.
Whitfield, P.J., and Terrell and Davis, J.J., concur in the opinion and judgment.
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Johnson v. Emil Metzinger, 116 Fla. 262 (Fla. 1934)…ecrees pro confesso against McKean and Ferguson. This case has already been considered by this Court on motions made by the ground owners to dismiss the appeal. The motions were denied on October 27, 1932. See Johnson, et al., v. Metzinger, et al., 144 So. 204. Another motion to dismiss and to quash was filed by the same parties, and the motions having been fully and ably argued and briefed by counsel for both sides, they have asked that the appeal be considered and determined on its merits, in connection…