MARTHA H. REYBINE, AS EXECUTRIX OF THE ESTATE OF ALPHEUS REYBINE, DECEASED,
v.
LISEL E. KRUSE, A WIDOW
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In this second appeal, the Florida Supreme Court affirmed the trial court's denial of a defendant's motion to dismiss an amended bill of complaint in an equity action. The case involved allegations of fraud where the defendant's signature was forged to obtain dismissal of a prior common law action and to release claims arising from an automobile accident.
The court held that the amended bill of complaint contains sufficient equity and is legally sufficient to survive the motion to dismiss, affirming the trial court's order overruling the defendant's motion to dismiss.
“It appears that the amended bill of complaint certainly contains equity when measured by some thirty-seven grounds of the motion to dismiss as made by the defendant below.”
The court's conclusion that the complaint pleads sufficient equitable grounds to survive dismissal despite the defendant's numerous objections.
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Join FLexlaw to unlock all legal intelligenceAlpheus Reybine was involved in an automobile accident and reached a settlement. The defendant forged Reybine's signature on a release document for $3…
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This case is here for the second Lime. The first appearance is reported in 128 Fla. 278, 174 So. 720. The second appeal is from an order of the Circuit Court of Dade County, Florida, dated June 1, 1938, over-, ruling and denying a motion of the defendant below to dismiss the amended bill of complaint. The order likewise sustains in part and overrules in part a motion to strike described portions of the amended bill of complaint. The same order directs the defendant to answer the amended bill of complaint within twenty days after June 1, 1938. On June 20, 1938, an answer was filed by the defendant to the amended bill and on the 28th day of June, 1938, an appeal was taken and perfected from the order dated June 1, 1938, and the question here is tire legal sufficiency of the amended bill of complaint as raised by the motion to dismiss. It is unnecessary to consider the portions of the order granting-in part and overruling in part defendant’s motion to strike described portions of the amended bill.
*578It is not here necessary to set out the allegations of fraud appearing in the amended bill of complaint whereby the signature of appellee was forged to a motion upon which an order of dismissal of a common law suit was obtained, nor a recital of the facts as to' her forged signature to a release of all claims and obligations growing out of an automobile accident to Alpheus Reybine for the sum of $300.00. The prayer of the amended bill of complaint is for an order to vacate, set aside and declare void the order of dismissal of the common law action dated September IS, 1930. A revival of the common law action dismissed, because of fraudulent representation is prayed for.
It appears that the amended bill of complaint certainly contains equity when measured by some thirty-seven grounds of the motion to dismiss as made by the defendant below. We find no error in the record and the order appealed from is hereby affirmed.
Whitfield, P. J., and Terrell, C. J., and Brown, J., concur.
Buford, J., concurs specially.
Justice Thomas not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
(concurring specially). — My personal legal opinion is as stated in dissenting opinion in Reybine v. Kruse, 128 Fla. 287, 174 So. 720, but that opinion is overruled by the majority opinion as it appears in that case which majority opinion is controlling, so I now concur in the present opinion prepared by Mr. Justice Chapman.
Buford, J.
(concurring specially). — My personal legal opinion is as stated in dissenting opinion in Reybine v. Kruse, 128 Fla. 287, 174 So. 720, but that opinion is overruled by the majority opinion as it appears in that case which majority opinion is controlling, so I now concur in the present opinion prepared by Mr. Justice Chapman.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Reybine v. Lisel E. Kruse, 128 Fla. 278 (Fla. 1937)
- Carver v. Chase, 128 Fla. 287 (Fla. 1937)