City of Jacksonville v. Massey Business College

Supreme Court of Florida

City of Jacksonville v. Massey Business College

47 Fla. 339

CourtSupreme Court of Florida

DecidedJanuary 15, 1904

StatusPublished

Cited by17 cases

This text of 47 Fla. 339 (City of Jacksonville v. Massey Business College) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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City of Jacksonville v. Massey Business College, 47 Fla. 339 (Fla. 1904).

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Opinion

Shackleford, J.

(after stating the facts).- — Although the point is not expressly presented or argued in this court, an examination of the bill of complaint discloses that it is without equity, complainant having ample remedy at law, all the property mentioned therein being personal property. The case of Baldwin v. Tucker, 16 Fla. 258, is directly in point. Also see Town of Orange City v. Thayer, 15 Fla. 502, 34 South. Rep. 573, and numerous authorities there cited.

The bill having failed to present a case where the relief prayed is authorized and, moreover, being entirely without equity, it is the duty of the appellate court to notice the defect, although it has been ignored in the pleadings, assignments of error and arguments. Stapylton v. Neely, 44 Fla. 212, 32 South. Rep. 868; Richardson v. Gilbert, 21 Fla. 544, text 555, and authorities there cited; Freeman v. [348]*348Timanus, 12 Fla. 393, text 404; Sauls v. Freeman, 24 Fla. 209, text 224, 4 South. Rep. 525; Trustees I. I. Fund of Florida v. Gleason, 39 Fla. 771, text 773, 23 South. Rep. 539; McMillan v. Wiley, 45 Fla. 487, 33 South. Rep. 993; See, also, Griffin v. Orman, 9 Fla. 22; Hughey v. Win-borne, 44 Fla. 601, 33 South. Rep. 249.

It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of-equity, he must suffer the consequences of his so doing. Johnson v. McKinnon 45 Fla. 338, 34 South. Rep. 272; Stockton v. National Bank of Jacksonville, 45 Fla. 590, 34 South. Rep. 897; Pinney v. Pinney, 46 Fla. 559, 35 South. Rep. 95. Also see Parker v. Dekle, 46 Fla. 452, 35 South. Rep. 4; Jordan v. Petty, 5 Fla. 326, text 332; Humphreys v. Atlantic Milling Co., 98 Mo. 542, text 551, 10 S. W. Rep. 140; Clark v. Bayer, 32 Ohio St. 299, text 304, S. C. 30 Amer. Rep. 593.

From what has been said -it follows that the decree must be reversed, with directions to dismiss the bill; the appellee to pay the costs of this appeal.

Hocker, Cockrell, Whitfield and Carter, JJ., concur.

Taylor, C. J., absent on account of sickness.

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Shackleford, J.

(after stating the facts).- — Although the point is not expressly presented or argued in this court, an examination of the bill of complaint discloses that it is without equity, complainant having ample remedy at law, all the property mentioned therein being personal property. The case of Baldwin v. Tucker, 16 Fla. 258, is directly in point. Also see Town of Orange City v. Thayer, 15 Fla. 502, 34 South. Rep. 573, and numerous authorities there cited.

The bill having failed to present a case where the relief prayed is authorized and, moreover, being entirely without equity, it is the duty of the appellate court to notice the defect, although it has been ignored in the pleadings, assignments of error and arguments. Stapylton v. Neely, 44 Fla. 212, 32 South. Rep. 868; Richardson v. Gilbert, 21 Fla. 544, text 555, and authorities there cited; Freeman v. [348]*348Timanus, 12 Fla. 393, text 404; Sauls v. Freeman, 24 Fla. 209, text 224, 4 South. Rep. 525; Trustees I. I. Fund of Florida v. Gleason, 39 Fla. 771, text 773, 23 South. Rep. 539; McMillan v. Wiley, 45 Fla. 487, 33 South. Rep. 993; See, also, Griffin v. Orman, 9 Fla. 22; Hughey v. Win-borne, 44 Fla. 601, 33 South. Rep. 249.

It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of-equity, he must suffer the consequences of his so doing. Johnson v. McKinnon 45 Fla. 338, 34 South. Rep. 272; Stockton v. National Bank of Jacksonville, 45 Fla. 590, 34 South. Rep. 897; Pinney v. Pinney, 46 Fla. 559, 35 South. Rep. 95. Also see Parker v. Dekle, 46 Fla. 452, 35 South. Rep. 4; Jordan v. Petty, 5 Fla. 326, text 332; Humphreys v. Atlantic Milling Co., 98 Mo. 542, text 551, 10 S. W. Rep. 140; Clark v. Bayer, 32 Ohio St. 299, text 304, S. C. 30 Amer. Rep. 593.

From what has been said -it follows that the decree must be reversed, with directions to dismiss the bill; the appellee to pay the costs of this appeal.

Hocker, Cockrell, Whitfield and Carter, JJ., concur.

Taylor, C. J., absent on account of sickness.

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