BURNICE MINCEY WHITE AND BANKERS FIRE AND CASUALTY COMPANY, APPELLANTS,
v.
KATHERINE DYER, APPELLEE
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There was a time when a defendant demurred at his peril,1 but it is long past. In this case, for reasons inscrutable, an able lawyer filed, with his motion to dismiss the complaint, a motion for judgment on the pleadings, without filing an answer. The trial judge, taking as true all the complaint said, agreed that it was subject to dismissal for improper form but was sound in substance, and he entered judgment on the pleadings for the plaintiff. Fla.R.Civ.P. 1.140(c), 30 F.S.A. makes a motion for judgment on the pleadings appropriate “after the pleadings are closed.”2 That time had not yet come, and the defendant should be allowed to plead after any amendment which may be required to perfect the plaintiff’s complaint.
Reversed and remanded.
LILES, Acting C. J., and McNULTY, J., concur.
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J & S Coin Operated Machs., Inc. v. Gottlieb, 362 So. 2d 38 (Fla. 3d DCA 1978)…the motion was prematurely filed and the court erred in entertaining it at this stage of the proceedings. Storer v. Florida Sportservice, Inc., 115 So. 2d 433 (Fla.3d DCA 1959); Shealor v. Ruud, 221 So. 2d 765, 768 (Fla.4th DCA 1969); White v. Dyer, 261 So. 2d 863 (Fla.2d DCA 1972); Fla.R.Civ.P. 1.140(c). The second point is that the court summarily construed the letter modifying the agreement without considering the legal effect of both instruments together and without considering evidence as to the intent…