CITY OF MIAMI
v.
HAMILTON ET AL.
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The City of Miami sought certiorari to review a lower court order overruling its motion to dismiss the original complaint. The Florida Supreme Court denied the petition but allowed the City to renew its motion to dismiss the amended complaint, holding that it would be premature to review the sufficiency of the original complaint when the case will be tried on an amended version.
The Court denied certiorari as to the original complaint but allowed the City to renew its motion to dismiss the amended complaint within five days of the mandate, holding that reviewing the original complaint's sufficiency serves no useful purpose when the case will be tried on an amended pleading.
“The sufficiency of the complaint on which the case will be tried before the lower court has never been ruled on by that court. It would serve no useful purpose for us to determine whether the original complaint stated a cause on which relief could be granted under the circumstances.”
Establishes the Court's rationale for denying certiorari—reviewing the original complaint is premature when the case will proceed on an amended pleading.
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Join FLexlaw to unlock all legal intelligenceThe City of Miami moved to dismiss the complaint filed by respondents Hamilton et al., incorporating a request for more definite pleading on fifteen g…
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DREW, Justice.
Petitioner, City of Miami, moved to dismiss the complaint of respondents. Incorporated in the motion was paragraph IS “ * * * to require the plaintiffs to make more definite their complaint in the following particulars * * and then followed the matters concerning which the defendant wanted more information. The lower court overruled the motion to dismiss paragraphs 1 to 14 but granted the “motion for compulsory amendment (ground 15)” and in the order it was provided that “ * * * the defendant shall answer the complaint as amended within 20 days of receipt of the amendment.” This order was dated July 17, 1953. On July 30, 1953, pursuant to the aforesaid order, plaintiffs filed a lengthy and substantial amendment with an exhibit.
We are now asked, by petition for certiorari, under 30 F.S.A.Rules of Supreme Court of Practice, rule 34, filed in this Court on September 10, 1953, to review the order of the lower court overruling„the motion to dismiss the original complaint.
The sufficiency of the complaint on which the case will be tried before the lower court has never been ruled on by that court. It would serve no useful purpose for us to determine whether the original complaint stated a cause on which relief could be granted under the circumstances. If the city had desired to question the sufficiency of the amended complaint (amended pursuant to its motion), it should have renewed its motion to dismiss that pleading and secured a ruling thereon.
Certiorari is denied with leave, however, to the city to renew its motion to dismiss the complaint as amended within S days from the date of the mandate.
ROBERTS, C. J., and TERRELL and SEBRING, JJ., concur.