Hinchee v. Fisher

CourtUnited States State Supreme Court of Florida
Writing for the CourtDREW; TERRELL
Citation93 So.2d 351
Decision Date06 March 1957
PartiesWarren D. HINCHEE et ux., Petitioners, v. Charles E. FISHER et ux., Respondents.

Page 351

93 So.2d 351
Warren D. HINCHEE et ux., Petitioners,
v.
Charles E. FISHER et ux., Respondents.
Supreme Court of Florida, Special Division A.
March 6, 1957.

Paul B. Johnson and Herbert Wentworth, Tampa, for petitioners.

William T. Fussel and Cody Fowler, Tampa, for respondents.

DREW, Justice.

May 26, 1955, Charles E. Fisher and his wife, Renee R. Fisher, hereinafter called

Page 352

the Fishers, filed their amended complaint against Warren D. Hinchee and Jean P. Hinchee, his wife, hereinafter called the Hinchees. The complaint alleged that the Fishers in 1953 were the owners of a lease containing an option to purchase said real estate located in Hillsborough County, Florida and that at said time they, the said Fishers, were in a precarious financial condition and were having difficulty meeting the payments on the lease. It is alleged that the Hinchees, friends of the Fishers, suggested to the Fishers that they assign the lease to the Hinchees and that they would proceed to work out a refinancing of the entire property and, when such had been accomplished, would reconvey the same to the Fishers. The complaint then alleges the details of the transaction and of the events which took place in connection with the refinancing and further alleges that after the same was arranged and worked out, the Hinchees refused to reconvey the said property to the Fishers. The Fishers in the complaint admitted owing the Hinchees some $4,500 and alleged that 'plaintiffs now stand ready, willing and able and do tender and offer to pay' such sum and any other amounts found to be due the Hinchees. Such sum of money, however, was not paid into the registry of the court as had been theretofore ordered by the trial judge in the same order he had entered allowing the amended complaint, the allegations of which we have narrated, to be filed. The case lay dormant in the trial court for about eight months and then on February 1, 1956, pursuant to a motion made by the defendants Hinchee, an order was entered by the trial court 'that the motion to dismiss the amended complaint be and the same is hereby granted.' The basis of the motion granted was the failure of the Fishers to pay into the registry of the court the sum of money which had been required by the trial judge in the previous order. It is pertinent to note that the trial court ordered the payment of said sum into the registry of the court within ten days and it was some eight months thereafter before the complaint was dismissed for the failure to do so.

Certiorari was taken to this Court from the order last above mentioned but on motion duly made here the certiorari proceedings were dismissed by us on May 30, 1956 for the reason the order sought to be reviewed was a final decree reviewable only by appeal. Fisher v. Hinchee, Fla.1956, 88 So.2d 640.

July 12, 1956 the Fishers filed another complaint against the Hinchees. A motion to dismiss the complaint was promptly made by the Hinchees on numerous grounds, one of which was that the cause of action alleged was the same as that contained in the former suit, the parties were the same and that, therefore, the plaintiffs were estopped from maintaining said action by the doctrine of res adjudicata. The trial court denied the motion to dismiss and this action is now before us on certiorari.

While the phraseology of the complaint in the latter action differs...

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35 practice notes
  • Aerojet-General Corp. v. Askew, AEROJET-GENERAL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 21, 1975
    ...scope of the cause of action and the doctrine of virtual representation is the same as the federal law. See Hinchee v. Fisher, Fla., 1957, 93 So.2d 351, 353; Gordon v. Gordon, Fla., 1952, 59 So.2d 40, 43--44; Wolfson v. Rubin, Fla., 1951, 52 So.2d 344, 346; Young v. Miami Beach Improvement ......
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...elements in rendering a cause res judicata is a prior final judgment. 19 Fla.App.,Jur., Judgments § 107. Hinchee v. Fisher, Fla.App.,1957, 93 So.2d 351. A party relying on a former judgment must not only plead but must prove the judgment relied upon. Betts v. Betts, Fla.App.,1953, 63 So.2d ......
  • Hoechst Celanese Corp v. Fry, Nos. 96-1211
    • United States
    • Court of Appeal of Florida (US)
    • March 19, 1997
    ...all matters germane thereto that were or could have been raised. See Albrecht v. State, 444 So.2d 8, 11-12 (Fla.1984); Hinchee v. Fisher, 93 So.2d 351, 353 (Fla.1957); ICC Chemical Corp. v. Freeman, 640 So.2d 92, 93 (Fla. 3d DCA 1994). Thus, the appellees were correct in their assertion tha......
  • Donnell v. Industrial Fire and Cas. Co., No. 78-2380
    • United States
    • Court of Appeal of Florida (US)
    • January 22, 1980
    ...cert. denied, 131 So.2d 201 (Fla.1961). 5 This was the case in each of the decisions cited in the appellee's brief. Hinchee v. Fisher, 93 So.2d 351 (Fla.1957); Capers v. Lee, 91 So.2d 337 (Fla.1956); Maule Industries, Inc. v. MacDonald Engineering Co., 296 So.2d 512 (Fla. 3d DCA 1974); Gibb......
  • Request a trial to view additional results
35 cases
  • Aerojet-General Corp. v. Askew, AEROJET-GENERAL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 21, 1975
    ...scope of the cause of action and the doctrine of virtual representation is the same as the federal law. See Hinchee v. Fisher, Fla., 1957, 93 So.2d 351, 353; Gordon v. Gordon, Fla., 1952, 59 So.2d 40, 43--44; Wolfson v. Rubin, Fla., 1951, 52 So.2d 344, 346; Young v. Miami Beach Improvement ......
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...elements in rendering a cause res judicata is a prior final judgment. 19 Fla.App.,Jur., Judgments § 107. Hinchee v. Fisher, Fla.App.,1957, 93 So.2d 351. A party relying on a former judgment must not only plead but must prove the judgment relied upon. Betts v. Betts, Fla.App.,1953, 63 So.2d ......
  • Hoechst Celanese Corp v. Fry, Nos. 96-1211
    • United States
    • Court of Appeal of Florida (US)
    • March 19, 1997
    ...all matters germane thereto that were or could have been raised. See Albrecht v. State, 444 So.2d 8, 11-12 (Fla.1984); Hinchee v. Fisher, 93 So.2d 351, 353 (Fla.1957); ICC Chemical Corp. v. Freeman, 640 So.2d 92, 93 (Fla. 3d DCA 1994). Thus, the appellees were correct in their assertion tha......
  • Donnell v. Industrial Fire and Cas. Co., No. 78-2380
    • United States
    • Court of Appeal of Florida (US)
    • January 22, 1980
    ...cert. denied, 131 So.2d 201 (Fla.1961). 5 This was the case in each of the decisions cited in the appellee's brief. Hinchee v. Fisher, 93 So.2d 351 (Fla.1957); Capers v. Lee, 91 So.2d 337 (Fla.1956); Maule Industries, Inc. v. MacDonald Engineering Co., 296 So.2d 512 (Fla. 3d DCA 1974); Gibb......
  • Request a trial to view additional results

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