Clark v. Pierie

152 So. 2d 743, 1963 Fla. App. LEXIS 3642

• Court: District Court of Appeal of Florida
• Decided: April 23, 1963
• Docket: No. E-45
• Status: Published

Opinion

PER CURIAM.

This interlocutory appeal is from an order entered by the chancellor striking four alleged defenses to the complaint interposed by appellant, Mary H. Clark. The propriety of the order striking such defenses is the question presented for our consideration.

The complaint is one in equity by which appellee Anna M. Pierie seeks in-junctive relief against appellant, Mary H. Clark, and her husband, the appellee Edward J. Clark, with respect to the net proceeds realized by the latter from a sale of a parcel of land in Duval County. A careful ex7 amination of the complaint leads to inescapable speculation as to whether the gravamen of the action is premised upon the theory of an implied trust or of a contractual lien in and upon the net proceeds derived from the sale of the land in question. The sufficiency of the complaint to state a cause of action has neither been raised nor passed upon by the chancellor. Because of this, nothing said herein shall be construed as an expression or ruling by this court with respect to the sufficiency of the complaint to warrant the relief prayed therein.

In this state of the record we must assume that the appellant, having filed an answer, at the present concedes that the complaint states a cause of action upon the theory of an implied trust in or lien upon the net proceeds derived from the sale of the land described in the complaint, and we hold that the trial court did not commit error in the ruling which forms the subject of this appeal. The order is accordingly affirmed.

STURGIS, Acting C. J., and WIGGIN-TON and RAWLS, JJ., concur.