Dudemaine v. Shaw

Supreme Court of Florida

Dudemaine v. Shaw

13 So. 2d 444, 153 Fla. 16, 1943 Fla. LEXIS 538

CourtSupreme Court of Florida

DecidedMay 14, 1943

StatusPublished

Cited by3 cases

This text of 13 So. 2d 444 (Dudemaine v. Shaw) 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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Dudemaine v. Shaw, 13 So. 2d 444, 153 Fla. 16, 1943 Fla. LEXIS 538 (Fla. 1943).

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Opinion

*17 SEBRING, J.:

The petitioner seeks by petition for interlocutory certiorari to review an order or decree of the lower court dismissing an amended bill of complaint. The point is made by the respondents that the petitioner has mistaken her remedy, in that she should have come here by appeal instead of by petition for certiorari.

A motion to dismiss an amended bill of complaint on the ground that there is no equity in the bill seeks to finally terminate the suit by dismissing the bill. If granted, the order on the motion is final, unless the chancellor enters the order conditioned upon an amendment of the bill to state a cause in equity. Lykes Bros. Florida Co. v. King, et al., 125 Fla. 101, 169 So. 595.

In the present case motions to dismiss the amended bill of complaint were filed by all parties defendant against whom any relief was sought. On argument, the several motions to dismiss were granted and an order thereon was entered. No leave was given the plaintiff to amend the amended bill of complaint, nor does it appear from the record that permission to amend was requested. The decree, therefore, was a final decree which was reviewable only by appeal and not by interlocutory certiorari. Saffran v. Adler, 152 Fla. 405, 12 So. (2nd) 124.

The petition for interlocutory certiorari should be denied.

It is so ordered.

BUFORD, C. J., BROWN and THOMAS, JJ., concur.

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*17 SEBRING, J.:

The petitioner seeks by petition for interlocutory certiorari to review an order or decree of the lower court dismissing an amended bill of complaint. The point is made by the respondents that the petitioner has mistaken her remedy, in that she should have come here by appeal instead of by petition for certiorari.

A motion to dismiss an amended bill of complaint on the ground that there is no equity in the bill seeks to finally terminate the suit by dismissing the bill. If granted, the order on the motion is final, unless the chancellor enters the order conditioned upon an amendment of the bill to state a cause in equity. Lykes Bros. Florida Co. v. King, et al., 125 Fla. 101, 169 So. 595.

In the present case motions to dismiss the amended bill of complaint were filed by all parties defendant against whom any relief was sought. On argument, the several motions to dismiss were granted and an order thereon was entered. No leave was given the plaintiff to amend the amended bill of complaint, nor does it appear from the record that permission to amend was requested. The decree, therefore, was a final decree which was reviewable only by appeal and not by interlocutory certiorari. Saffran v. Adler, 152 Fla. 405, 12 So. (2nd) 124.

The petition for interlocutory certiorari should be denied.

It is so ordered.

BUFORD, C. J., BROWN and THOMAS, JJ., concur.

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13 So. 2d 444, 153 Fla. 16, 1943 Fla. LEXIS 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dudemaine-v-shaw-fla-1943.

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