ROBERT KENNEDY, ET UX.,
v.
B. D. DELONG, ET AL.
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Kennedy sued to enjoin and recover property from a prior unlawful detainer judgment, seeking interpretation of a lease and restitution after losing the detainer action. The Florida Supreme Court affirmed the lower court's dismissal, holding that appellants should have sought equitable relief before the termination of tenancy in the underlying detainer proceeding, not afterwards in a separate suit.
The court affirmed dismissal of the equity bill, holding that appellants sought such relief too late and should have pursued it in the original county court unlawful detainer proceeding by tendering moneys owed or offering to do equity and providing indemnity security for an injunction.
“In this case appellants seek interpretation and a declaratory decree too late.”
Establishes the fundamental holding that appellants' attempt to seek equitable relief after the termination of the tenancy was untimely.
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Join FLexlaw to unlock all legal intelligenceAppellants Kennedy were defendants in an unlawful detainer action brought by DeLong in county court under F.S. 1941 § 82.01 et seq. The case was tried…
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Unlawful detainer proceedings were brought against appellants by appellees in the county court. It appears that the proceedings there were had pursuant to F.S. of 1941, 82.01 et seq., upon a petition and a summons. A venire facias was issued for jurymen to try the case on the return day of the summons. Notwithstanding F.S. 82.11, 1941, defendants filed pleas and some interrogatories. Upon the return of the writ the trial proceeded ex parte, and a verdict was rendered against appellants.
Motions to set aside the verdict and for new trial were promptly made, the principal basis for both being that defendants’ counsel did not know the case would be tried on the day and at the hour mentioned in the summons — to-wit, 9:30 A.M. of May 7, 1945. Both were denied. It does not appear that the unlawful detainer suit was appealed.
Appellants’ next step was to bring this equity suit to have this court interpret said lease and issue a mandatory injunction giving appellants restitution. The motion to dismiss the bill was sustained, and appellants’ appeal assigned as error the chancellor’s decree of dismissal.
In this case appellants seek interpretation and a declaratory decree too late. They might have appropriately sought this relief before the termination of their tenancy by the proceedings in the County Judge’s court by tendering into court with their bill the moneys claimed by their landlord or by offering to do equity, asking adjudication of amount due, if any, and offering to give indemnity security as a condition to the issuance of an injunction against the landlord, seeking termination of the lease or dispossession. Such was the case of Masser et al v. The London Operating Company, 106 Fla. 474, 145 So. 79.
Notwithstanding that we have concluded that the chancellor did not err, we note from the proceedings in the county *17court that the verdict was only for real estate, when the petition and summons included personal property. The statutory petition, summons, and verdict forms as contained in the above mentioned statute do not have to be followed literally. It was intended by the legislature that they be followed “substantially” in order to allow slight departures from the words of the statutory forms by reason of the circumstances of the particular case. The verdict was within the petition and summons, but for less property.
The decree appealed is affirmed.
CHAPMAN, C. J„ BROWN and SEBRING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Braeman v. Catalina Props., Inc., 76 So. 2d 505 (Fla. 1954)…PER CURIAM. There was no offer to do equity in this case, and the facts alleged in the amended complaint were insufficient as a basis for equitable relief. See Kennedy v. DeLong, 157 Fla. 15, 24 So. 2d 703, and Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 79. Cf. Nevins Drug Co. v. Bunch, Fla., 63 So. 2d 329. Affirmed. ROBERTS, C. J., and THOMAS, HOB-SON and DREW, JJ., concur.…
Authorities Cited
- Masser v. The London Operating Co., 106 Fla. 474 (Fla. 1932)