Hewitt v. Punta Gorda State Bank
| Decision Date | 13 January 1933 |
| Parties | HEWITT et al. v. PUNTA GORDA STATE BANK. |
| Court | Florida Supreme Court |
Suit by the Punta Gorda State Bank against Clarence W. Hewitt and another. From an order denying defendants' motion to dismiss the bill, defendants appeal.
Reversed and remanded. Appeal from Circuit Court Charlotte County; W. T. Harrison, judge.
Thomas W. Butler, of Punta Gorda, for appellants.
Leitner & Leitner, of Arcadia, for appellee.
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, 101 Fla. 885, 134 So. 556; Cowdery v. Herring (Fla.) 143 So. 433. Nor does the bill allege that the fraudulent conveyances are obstacles to the full enforcement of the judgment, nor is there any prayer for the vacation or cancellation of such fraudulent conveyances, nor to remove them as clouds on the title to the property. Balsley v. Union Cypress Co., 92 Fla. 706 110 So. 263; Punta Gorda State Bank v. Wilder, 93 Fla. 301, 112 So. 569. The bill alleges that transfers of certain property were made for the purpose of hindering, delaying, and defeating complainants' judgments. This is in substance about all that the bill alleges. The only prayer of the bill was that the property be decreed to be the property of the judgment debtors. While no objection to the prayer of a bill can be raised by a motion to dismiss or demurrer, the allegations of the bill in this case are not sufficient, under the authorities above cited to give the bill equity, either as a bill to set aside fraudulent conveyances, or as a creditor's bill.
The court below should have sustained appellants' 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 (Acts 1931 c. 14658), 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...
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