STATE EX REL. L. E. MOORE
v.
M. C. GILLIAN, JR., AND KENNETH COBB, TRADING AND DOING BUSINESS UNDER THE NAME OF LOCAL FINANCE COMPANY
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The Florida Supreme Court reviewed whether a bill of complaint alleging that defendants engaged in unlawful short-loan business practices with usurious interest stated sufficient equity to survive a motion to dismiss. The Court held that while the bill stated a case for possible injunctive relief regarding unlawful practices, it did not necessarily justify the broad injunctive scope sought to deprive defendants of property use and business operation.
The Court held that the bill stated sufficient equity to survive the motion to dismiss and demurrer because it alleged facts entitling the plaintiff to relief. However, the Court quashed the writ of certiorari, indicating that while injunctive relief might be appropriate to enjoin unlawful practices, the scope of such relief could not necessarily extend to depriving defendants of property use, trade-name, and business location for lawful business operation.
“It would seem that no objection to the prayers of the bill can be raised by motion to dismiss because if the bill states a case entitling the plaintiff to any relief under any special prayer or under the implied prayer for general relief, it will not be dismissed.”
Establishes the legal standard that a bill of complaint should not be dismissed merely because the prayer for relief may be defective, if the facts alleged entitle plaintiff to any relief.
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Join FLexlaw to unlock all legal intelligenceThe State, through relator L.E. Moore, filed an amended bill of complaint against M.C. Gillian, Jr. and Kenneth Cobb, trading as Local Finance Company…
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On certiorari granted under Rule 34 we review order denying motion to dismiss amended bill of complaint and overruling demurrer to amended bill of complaint.
The bill is not without equity. Motion to dismiss takes the place of demurrers as they were used prior to the 1931 Chancery Practice Act.
The bill of complaint is not to be measured by the prayer.
“It would seem that no objection to the prayers of the bill can be raised by motion to dismiss because if the bill states a case entitling the plaintiff to any relief under any *709special prayer or under the implied prayer for general relief, it will not be dismissed. See Phifer v. Abbott, 73 Fla. 402, 74 So. 488; Fla. So. R. Co. v. Hill, 40 Fla. 1, 23 So. 566, 74 A. S. R. 124; Orlando v. Equ. Bldg., etc., Assn., 45 Fla. 507, 33 So. 986; Brokaw v. McDougal, 20 Fla. 212; Isle-worth Grove Co. v. Orange County, 79 Fla. 208, 84 So. 83; Raulerson v. Peeples, 79 Fla. 367, 84 So. 370; South Fla. Citrus Land Co. v. Walden, 59 Fla. 606, 51 So. 554; White Engr. Co. v. Peoples St. Bank, 81 Fa. 35, 87 So. 753; Hewitt v. Punta Gorda State Bk., 108 Fla. 39, 145 So. 883.” McCarthy’s Chancery Practice Act, page 76.
The amended bill of complaint in effect alleges that respondents, holding themselves out as “salary buyers” are engaged in the short loan business and unlawfully exact and require the payment of usurious interest on such loans and that such practice constitutes a violation of the criminal and civil laws of Florida, is a menace to the public welfare and is abatable as a public nuisance.
It may be that under the allegations of the amended bill of complaint the plaintiff may be able to show that respondents indulge in practices which are unlawful and constitute a menace to public welfare, the continuance of which the State may invoke the aid of the Court of Chancery to enjoin, but it does not follow necessarily that the scope of such injunctive relief may be extended to depriving the respondents of the use of their property, their trade-name and their business location for the conducting of their lawful business in an orderly and lawful manner. See Fasson v. State ex rel. Burton, filed at this term of the Court.
The writ of certiorari is quashed.
So ordered.
Terrell, C. J., and Thomas, J., concur.
*710AVhitfield, J., concurs in opinion and judgment.
Justices Brown and Ci-iapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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State of Fla. ex rel. Sandra Brown v. Sussman, 235 So. 2d 46 (Fla. 3d DCA 1970)…he maintenance of such a nuisance is proscribed in the same section this court is now asked to apply. See also National Container Corporation v. State ex rel. Stockton, 138 Fla. 32, 189 So. 4, 122 A.L.R. 1000 (1939) ; State ex rel. Moore v. Gillian, 141 Fla. 707, 193 So. 751 (1940); Valdez v. State ex rel. Farrior, 142 Fla. 123, 194 So. 388 (1940). Appellee suggests several reasons why we should not hold that the present complaint states a cause of action. First it is urged that the allegations of the comp…
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Five SKY, Inc. v. State of Fla. ex rel. Richard E. Gerstein, 131 So. 2d 39 (Fla. 3d DCA 1961)…nal injunction. It is axiomatic that the chancellor could not have prohibited a lawful business conducted in an orderly and lawful manner on the premises. See Fasson v. State ex rel. Burton, 141 Fla. 367, 193 So. 299; State ex rel. Moore v. Gillian, 141 Fla. 707, 193 So. 751. See also Federal Amusement Co. v. State ex rel. Tuppen, 159 Fla. 495, 32 So. 2d 1. However, the record shows, and the chancellor so found, that the appellants here could not operate their legitimate business at the Five O’Clock Club wi…
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Shell OIL Co. v. State, 295 So. 2d 648 (Fla. 3d DCA 1974)…n order to protect its quasi-sovereign interests [*650] which include the general health and welfare of the state. As we perceive the state’s contention, usury is a public nuisance which may be abated (see, State ex rel. Moore v. Gillian, Fla.1940, 141 Fla. 707, 193 So. 751), ergo since such a nuisance may be enjoined and may also adversely affect the state’s economy the state may seek monetary recovery on behalf of its citizens. We cannot agree. In Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S.Ct. 885,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Fed. Land Bank of Columbia v. Godwin, 107 Fla. 537 (Fla. 1931)
- Phifer v. Abbott, 73 Fla. 402 (Fla. 1917)
- City of Olando v. Equitable Bldg. & Loan Ass'n, 45 Fla. 507 (Fla. 1903)
- Isleworth Grove Co. v. Cnty. of Orange, 79 Fla. 208 (Fla. 1920)
- The Fla. S. R.R. Co. v. Hill, 40 Fla. 1 (Fla. 1898)
- Raulerson v. Peeples, 79 Fla. 367 (Fla. 1920)
- The J. G. White Eng'g Corp. v. Peoples State Bank of Lakeland, 81 Fla. 35 (Fla. 1921)
- Brokaw v. McDougall, 20 Fla. 212 (Fla. 1883)
- Hewitt v. Punta Gorda State Bank, 108 Fla. 39 (Fla. 1933)
- S. Fla. Citrus Land Co. v. Walden, 59 Fla. 606 (Fla. 1910)