Citation Numbers: 145 So. 883, 108 Fla. 39
Judges: BROWN, J. —
Filed Date: 1/13/1933
Status: Precedential
Modified Date: 1/12/2023
The bill in this case is hardly sufficient as a creditor's bill in that it nowhere alleges that the judgment debtor had only an equitable title to the property. George E. Sebring Co. v. O'Rourke
The court below should have sustained appellant's motion to dismiss the bill, and its failure to do so constitutes error for which the order appealed from must be reversed. The motion to dismiss the appeal will be denied.
Whether a motion to dismiss, under the 1931 Chancery Act, should be considered, for most practical purposes, as the equivalent of a general demurrer, so that the Chancellor would be authorized to grant the motion with leave to amend, or require an amendment within a specified time to meet the objections raised by the motion to dismiss, otherwise the bill to stand dismissed, are questions which we are not called upon to decide in this case, though they may arise upon further proceedings in the court below. The writer is inclined to think the Chancellor has this authority. See in this connection Section 33 of the 1931 Chancery Act and Mr. Edward McCarthy's Annotations of that Act recently published, pages 58-59.
Reversed and remanded.
WHITFIELD, P. J., and BUFORD, J., concur.
DAVIS, C. J., concurs in the opinion and judgment filed under Rule 21A. *Page 41
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