Stanley v. Home Owners Mtg. Co.

42 So. 2d 770, 1949 Fla. LEXIS 1034

• Court: Supreme Court of Florida
• Decided: November 18, 1949
• Status: Published

Opinion

As Judge of the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, Honorable D.O. Rogers filed in this Court a Certificate under Rule 38, Supreme Court Rules of Practice.

The following certified questions were contained in the certificate:

1. In an action for improper or wrongful attachment, is the plaintiff in his declaration required to allege and prove that no ground of attachment existed at the time of the attachment or, is he only required to allege that the ground or grounds alleged in the affidavit did not exist; and if such grounds as passed upon by the Court in sustaining or dissolving the attachment become res adjudicata when no appeal is taken?

2. In an action for improper or wrongful attachment, is the defendant limited to the grounds of attachment alleged in the affidavit, or may he set up as defense that some other ground or grounds existed other than those alleged in the affidavit and passed upon by the Court in dissolving the attachment?

The Certificate must be denied because the "questions or propositions of law" contained in the Certificate are not "without controlling precedent in this State". See Steen v. Ross, Keen Company, 22 Fla. 480.

Moreover, the questions as propounded fail to meet the requirements of Rule 38 in that they are not "definitely and concisely stated" and at least one of them contains more than a single question.

"As a general rule, only single, definite and distinct questions or propositions of law can be certified to this court." Florida National Bank of Jacksonville v. Gardner, 152 Fla. 636,12 So.2d 574.

Certificate denied.

ADAMS, C.J., and CHAPMAN and SEBRING, JJ., concur.