A. B. Archibald & Madeira Holding Co. v. Curry , 140 Fla. 189 ( 1939 )

Appeal brings for review order denying motion to dismiss bill of complaint by which it is sought to have adjudication that title to certain property is held by the holder of the legal title in trust for the use and benefit of the defendant judgment debtor.

Under our practice, as established by the 1931 Chancery Practice Act, motion to dismiss serves the purpose of a general demurrer and by it is tested the sufficiency of the allegations of the bill and it admits the allegations of the bill which are well pleaded for that purpose only. Such motion to dismiss should be denied if the bill of complaint contains any grounds for equitable relief. See Wright v. Barnard, 233 Fed. 329; Hyams v. Old Dominion Co., 204 Fed. 681; Wilson v. American Ice Co., 206 Fed. 736; Alexander v. Fidelity Trust Co., 215 Fed. 791; Destructor Co. v. Atlanta, 219 Fed. 996; and Clapp v. Coral Gables Corp., 98 Fla. 1230, 125 So. 369; Walker v. Close,98 Fla. 1103, 125 So. 521; Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408.

The bill is not wholly without equity and, therefore, the order should be affirmed.

So ordered.

Affirmed.

TERRELL., C. J., and THOMAS, J., concur.

WHITFIELD, J., concurs in opinion and judgment.

Justices BROWN and CHAPMAN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.