Jansik v. Studstill & Hollenbeck

• Decision Date: 04 January 1944
• Citation: 153 Fla. 870,16 So.2d 165
• Parties: JANSIK et al. v. STUDSTILL & HOLLENBECK, Inc., et al.
• Court: Florida Supreme Court

16 So.2d 165

153 Fla. 870

JANSIK et al. v. STUDSTILL & HOLLENBECK, Inc., et al.

Florida Supreme Court

January 4, 1944

Appeal from Circuit Court, Dade County; George E. Holt judge.

O. S Miller, of West Palm Beach, for appellants.

E. Harris Drew, of West Palm Beach, for appellees.

ADAMS, Justice.

A bill in equity was filed to have declared an equitable attachment against certain real estate. The bill alleges that the land sought to be attached was listed for sale by the appellant owner with appellee, a real estate broker. Appellee broker procured a prospective buyer, who, later, for the purpose of evading payment of the broker's commission, fraudulently conspired with the owner to enter into an agreement of sale that the title is yet in the seller. The seller and buyer are both made parties defendant and are both alleged to be nonresidents of Florida. All defendants answered denying the allegation of nonresidence and alleging residence in Florida and service of process in this case in Florida. The answers also denied the fraudulent conspiracy. Testimony was taken and a final decree entered adjudicating that the seller owed the commission and unless paid the property would be sold to satisfy same. The decree found that one (but did not say which one) of the defendants was a nonresident.

This case might be disposed of by passing on the sufficiency of the bill. In brief the appellee relies on the allegation of nonresidence and fraud to bring his case within Moss v. Sperry, 140 Fla. 301, 191 So. 531, 125 A.L.R. 909.

This case was prosecuted and decided under the authority of Moss v. Sperry supra. It appears from a re-examination of the latter case that this court passed upon the sufficiency of the bill only. And too, the bill was upheld not merely because of the allegation of fraud or the nonresidence of defendants but inasmuch as the claim was contingent attachment at law would not lie. And too, the debtor had no other property within the state. The latter allegation is not present in the case at bar. It also appears that the alleged claim was fully earned and its payment was not contingent as was the case in Moss v Sperry. In other words, the remedy at law was adequate.

The decree before us for approval being based on the evidence, we also consider another equally important proposition of law. To justify retention of a cause in equity the equitable jurisdiction alleged must likewise be proven. See Amphitrite Corp. et al. v. City of Fort Lauderdale, 147 Fla. 497, 3 So.2d 150; Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So. 473. The reason for this is readily apparent. A plaintiff could often allege...