Gibson v. Longino

• Decision Date: 20 July 1933
• Parties: GIBSON v. LONGINO et al.
• Court: Florida Supreme Court

149 So. 592

111 Fla. 533

GIBSON v. LONGINO et al.

Florida Supreme Court, Division B.

July 20, 1933

Suit by B. T. Longino and others against J. W. Gibson. From an order denying a motion to vacate an order sustaining a motion to strike one paragraph of defendant's answer, he appeals.

Affirmed. Appeal from Circuit Court, Hamilton County; Hal W. Adams, judge.

COUNSEL

H. L. Anderson, of Jacksonville, and J. L Blackwell, of Live Oak, for appellant.

Russell L. Frink, of Jacksonville, and F. B. Harrell, of Jasper, for appellees.

OPINION

BUFORD Justice.

This was a suit in equity. The prayer of the bill was in part as follows: 'That this Court take jurisdiction of the lands described in paragraph 'I' hereof, and the timber thereon, lying in Hamilton and Madison Counties, Florida, and by its final decree in this suit adjudicate and fully determine the matters and things herein involved as to said lands and timber in each of said counties and that the final decree of this Court, if, as and when so entered, by its express terms operate, effect and bind the said lands and/or timber thereon, lying both in Madison County and Hamilton County, Florida.'

Subsections C and D of the Prayer contemplated a decree that would adjudicate the rights of the parties in and to the lands and the timber growing thereon specifically described and being located a part in Hamilton county and a part in Madison county, Fla., and to decree a lien upon the property to protect and enforce the rights of the complainant.

This case has heretofore been before this court. See Gibson et al. v. Longino et al., 142 So. 216, in which case order overruling demurrer to bill of complaint was sustained.

Upon going down of the mandate, answer was filed.

Motion to strike the fourteenth paragraph of the answer was granted and thereafter motion to vacate order sustaining motion to strike was denied, from which order appeal was taken. That paragraph challenged the jurisdiction of the court in the following language: 'Auswering the fourteenth paragraph of said bill of complaint, this defendant says that this Honorable Court is without jurisdiction to hear and determine this cause, in this, that the right or interest which the plaintiffs claim set out in their bill of complaint is a right arising from an alleged contract made and entered into between Florida Turpentine Company, a corporation, and the plaintiffs, whereby the Florida Turpentine Company is alleged to have agreed to pay to the plaintiffs or their assignors 5% of the net market value of all the naval stores manufactured by Florida Turpentine Company, and was and is the personal covenant of said Florida Turpentine Company, and not otherwise, and that the Plaintiff M. P. Jones is attempting to maintain this suit on her behalf as a stockholder of Florida Turpentine Company, and not otherwise, and there are no allegations in the bill of complaint contained to show the right of a stockholder of Florida Turpentine Company to maintain in the name of said stockholder a suit in the interest and for the benefit of said corporation. There are no allegations in said bill of complaint to show that any effort of the plaintiff M. P Jones was made to secure such action as she desired, on the part of the managing directors or trustees or shareholders or any cause of her failure to obtain such action, or reasons for not making such effort. That the leasehold estate claimed and owned by this defendant is not such character of property as to entitle this Honorable Court to adjudicate the rights of the plaintiffs, if any, in this cause, but that said leasehold now held by this defendant is and at all times has been personal property, and its situs at the commencement of this suit was in Jackson County, Florida, and not otherwise, and that there is no fact alleged in the bill of complaint to warrant this Honorable Court in assuming jurisdiction of this cause by reason of the fact that the lands upon which this defendant holds a valid lease are located in Hamilton County, Florida; that neither one of ...