CHARLES WOGISCH AND KATHRYN WOGISCH, APPELLANTS,
v.
HOWARD TIGER AND WINIFRED TIGER ET AL., APPELLEES
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In this interlocutory appeal, the court affirmed a chancery order granting the City of Hollywood leave to intervene in a pending suit for injunction against a hog farm operation. The court held that the appellants' procedural challenge was premature because the court's order required the City to file a separate complaint after intervention was granted, not treating the petition to intervene as the complaint itself.
The court held that the City of Hollywood had sufficient interest to intervene and that the appellants' points on appeal were premature and not properly addressed to the interlocutory order, which merely granted the right to intervene and required the City to file a separate complaint within ten days, allowing defendants fifteen days to respond.
“When intervention is permitted upon sufficient showing of interest under Rule 3.4, F.R.C.P., 31 F.S.A., the inter-venor may, by proper pleading, make his petition for leave to intervene suffice as his complaint... However, the better and more usual practice is for the in-tervenor, having established his interest, to file a complaint setting forth his stance with reference to the litigation.”
Establishes the proper procedure for intervention and the filing of separate complaints
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Join FLexlaw to unlock all legal intelligenceAppellants Wogisch operated a hog farm. Other parties and the City of Hollywood sought to eliminate this operation through injunction, alleging it was…
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This interlocutory appeal is addressed to a chancery order which granted the City of Hollywood leave to intervene in a pending cause. The cause pending was a suit for injunction. It sought to eliminate a hog farm operation being carried on by the appellants.
Appellants go aground on a procedural shoal.
When intervention is permitted upon sufficient showing of interest under Rule 3.4, F.R.C.P., 31 F.S.A., the inter-venor may, by proper pleading, make his petition for leave to intervene suffice as his complaint. Bancroft v. Allen, 1937, 128 Fla. 14, 174 So. 749. However, the better and more usual practice is for the in-tervenor, having established his interest, to file a complaint setting forth his stance with reference to the litigation. Carr v. Carlisle, 1941, 146 Fla. 201, 200 So. 529. The sufficiency of this complaint may be then tested by motion. Morgareidge v. Howey, 1918, 75 Fla. 234, 78 So. 14; Carr v. Carlisle, supra.
The order appealed provided:
“ORDERED AND DECREED that the Petition of the City of Hollywood to Intervene in this cause be and the same is hereby granted, and that the City of Hollywood be and it is hereby granted ten. (10) days from date within which to file its Complaint, and that the Defendants be and they are hereby granted fifteen (15) days from receipt of the Complaint of the City of Hollywood within which to plead.”
Thus, it is clear that the chancellor provided and intended that the City of Hollywood would file a complaint separate from its petition to intervene. The appellants were then specifically provided with an opportunity to plead to it and thereby test its sufficiency. Until such complaint is filed by the intervening City, it cannot be known just what position it will seek to take in the suit.
Despite the foregoing, the appellants by the contents of their points on appeal1 undertake to treat the City’s Petition to Intervene as the City’s complaint and the order appealed as the instrument determining its legal sufficiency as a complaint. The appellants’ points on appeal may or may not be material depending on the future course taken by the City and the trial court’s future determination of its merits, if same is there contested by the appellants. In other words, the order in nowise determined the questions upon which the appellants frame their points on appeal.
Independently viewing the order in question, we recognize that intervention involves an exercise of the chancellor’s discretion and his determination will not be disturbed unless error is clearly made to appear. Switow v. Sher, 1939, 136 Fla. 284, 186 So. 519; Nelson v. Tropical Land Co., 1927, 93 Fla. 203, 111 So. 512. It is *189manifest that the City of Hollywood reflected such interest in the suit as to entitle it to intervene and file a complaint. It alleged that the hog farm was located within its corporate limits; that the area was thickly populated; and that it was zoned for single family residences. Its petition for intervention stated that the maintenance of the farm menaced the health, safety and welfare of its inhabitants and interfered with the proper use of its streets. The prayer was for the right to intervene “in subordination to and in recognition of the propriety of the main proceedings.”
No error having been found, the order appealed is affirmed.
SMITH, C. J., and ANDREWS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Md. Cas. Co. v. Hanson Dredging, Inc., 393 So. 2d 595 (Fla. 4th DCA 1981)…gin our consideration with the following statement of law. [Intervention involves an exercise of the chancellor’s discretion and his determination will not be disturbed unless error is clearly made to appear. (Citations omitted.) Wogisch v. Tiger, 193 So. 2d 187 (Fla. 4th DCA 1966). With particular reference to attempts to intervene in the latter stages of litigation, the Supreme Court of Florida has adopted the almost universal rule that intervention will not be allowed after final judgment. Dickinson v. S…
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Wong v. Karsten Bodo von Wersebe, 365 So. 2d 429 (Fla. 3d DCA 1978)…of justice they should be allowed to intervene as parties respondent. Intervention involves the exercise of the [*431] trial judge’s discretion and in absence of an abuse of that discretion, his determination will not be disturbed. Wogisch v. Tiger, 193 So. 2d 187 (Fla. 4th DCA 1966). From the record presented to this court, we find that the Wongs failed to demonstrate that the trial judge abused his discretion in denying their motion to intervene. See e. g. Leatherman v. Schwab, 98 Fla. 885, 124 So. 459 (192…
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In the Interest of J. S. v. Seekell, 404 So. 2d 1144 (Fla. 5th DCA 1981)…scretion, and the trial court will not be reversed in the absence of an abuse of that discretion. Nelson Bullock Co. v. Southdown Development Co., 132 Fla. 495, 181 So. 365 (1938); Wong v. Wersebe, 365 So. 2d 429 (Fla.3d DCA 1978); Wogisch v. Tiger, 193 So. 2d 187 (Fla. 4th DCA 1966). See also The Florida Bar, Florida Civil Practice Before Trial § 11.9 (1975). Because as grandmother Mrs. Hamel has no right to participate in her grandchild’s dependency proceedings, and because the trial court has taken adequat…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morgareidge v. Howey, 75 Fla. 234 (Fla. 1918)
- Med Rehab Therapy Ctr. Inc. v. Direct Gen. Ins. Co., 48 Fla. L. Weekly D1700 (Fla. 3d DCA 2024)
- Switow v. Sher, 136 Fla. 284 (Fla. 1939)
- Bancroft v. Will Allen, 128 Fla. 14 (Fla. 1937)
- Nelson v. Tropical Land Co., 93 Fla. 203 (Fla. 1927)
- Clarence E. Carr for Charles H. Carr v. Carlisle, 146 Fla. 201 (Fla. 1941)