Freeman v. Corbin

284 So. 2d 414

• Court: District Court of Appeal of Florida
• Decided: October 30, 1973
• Docket: No. 73-219
• Status: Published

Opinion

PER CURIAM.

Appellant, plaintiff in the trial court, seeks review of an adverse final order sustaining a motion to dismiss a complaint which primarily sounded in equity, because of a finding by the trial judge that the Statute of Limitations, provided in § 733.-211, Fla.Stat. F.S.A., prevented the maintenance of the action.

Normally, statutes of limitations are not applicable to equity cases; they are subject to a laches plea. However, we find that the cited statute is not applicable to the instant case because there is no showing that any claim was ever filed in the estate proceedings involved in this matter. And, we fail to find from the complaint that laches is shown on the face thereof. Flye v. Jeffords, Fla.App.1958, 106 So.2d 229; Volpicella v. Volpicella, Fla.App.1962, 136 So.2d 231.

Therefore, the trial judge was in error in dismissing the complaint with prejudice, and the matter is hereby reversed and returned to the trial court for further proceedings.¹

Reversed and remanded, with directions.

1 . State v. Byington, Fla.App.1964, 168 So.2d 164; § 733.51, Fla.Stat., F.S.A.; Rule 5.340, Florida Probate and Guardianship Rules.