ERNEST MERES, ET AL.,
v.
M. MCKINSTRY SIMMONS, AS TRUSTEE, AND JAMES S. SIMMONS
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The Florida Supreme Court affirmed a lower court's decision to deny a motion to dismiss an amended bill of complaint. The court found that the amendment, which concerned an acceleration agreement related to a mortgage, did not constitute a departure in pleading because it pertained to the main contract and did not change the suit's ultimate purpose.
No, the amendment did not constitute a departure in pleading. It pertained to the main contract and did not alter the ultimate purpose of the suit.
“We do not think the amendment constituted a departure in pleading.”
Establishes the court's conclusion regarding the nature of the amendment.
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Join FLexlaw to unlock all legal intelligenceAppellees, as trustees, filed an amended bill of complaint to foreclose a trust deed. Appellants moved to dismiss the amended bill, arguing that the a…
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This appeal is from a decree refusing to dismiss an amended bill of complaint by appellees as trustees to foreclose a trust deed. The ground of dismissal being that the amendment constituted a departure in pleading. In the order appealed from the court in terms withheld ruling on other questions.
The amendment to the bill of complaint had to do with an acceleration agreement entered into between the parties to the mortgage. The original bill had equity and had been answered when the amendment was filed. The motion to dismiss should -have been directed to the amendment. We do not think the amendment constituted a departure in pleading. It involved an agreement entered into between the parties pertaining to the main contract and in no way affects the latter except as to payments. The ultimate purpose of the suit is not changed. Johnston v. Johnston, 122 Fla. 372, 165 So. 698.
The judgment below is accordingly affirmed.
Affirmed.
Ellis, P. J., and Terrell and Buford, J. J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.