Hough v. Menses
| Decision Date | 22 May 1957 |
| Citation | 95 So.2d 410 |
| Parties | John R. HOUGH, Jr., Appellant, v. David MENSES and Ruth V. Menses, his wife; and Max Jeruss and Ida Jeruss, his wife, Appellees. |
| Court | Florida Supreme Court |
Guion T. DeLoach, Miami, for appellant.
Joseph A. Boyd, Jr., Hialeah, for appellees.
John R. Hough, Jr., appellant here, as plaintiff in the court below brought an action at law for ejectment and damages for trespass, waste and mesne profits, against the defendants, David Menses and wife, and Max Jeruss and wife, who are appellees here. From an order dismissing the complaint plaintiff appeals.
In his complaint the plaintiff alleged among other things: the description of the lands involved; that plaintiff claimed title to said lands and deraigned his chain of title; that defendants were in possession of said lands, had received the profits therefrom, and that the defendants had refused to deliver to plaintiff possession of the subject lands or pay to plaintiff the profits therefrom. These allegations comply in substance with the requirements of Sec. 70.03, F.S.A.
The plaintiff further alleged the chain of title under which the defendants claim, including a suit to quiet title brought by one of the defendants' predecessors in title, and undertook to explain the invalidity of the defendants' title.
The defendants filed a document entitled 'Motion to Dismiss.' The grounds of the motion are as follows:
(1) the complaint failed to state a cause of action on which the relief sought could be granted.
(2) the issues raised were res judicata because of the previous suit to quiet title.
(3) the bill of complaint on its face showed the clerk of the court had acted in accordance with law concerning the tax deed and the quiet title suit.
(4) on the face of the pleadings the statute of limitations barred plaintiff from recovery.
(5) the public records revealed the defendants Menses had conveyed all their interest in the property to the defendants Jeruss and thus should not have been named as defendants.
After hearing argument on the motion to dismiss, the court entered an order stating:
'* * * [T]his cause be, and the same is hereby dismissed, with leave to amend within 20 days, but in event the plaintiff elects to amend the amended complaint shall be as a complaint in equity for even if the plaintiff is entitled to relief it is only on the equity side.'
Grounds (2) and (4) of the motion to dismiss are affirmative defenses which are not properly raised on motion to dismiss, but should be raised in an answer. See Fla. Rules Civ.Proc. rules 1.8 (d) and 1.11(b), 30 F.S.A. The reason for this is that the plaintiff should not have the burden of anticipating a defense and then overcoming it in his initial pleading. Akin v. City of Miami, Fla.1953, 65 So.2d 54, 37 A.L.R.2d 691 and Tuggle v. Maddox, Fla.1952, 60 So.2d 158. Furthermore the burden is on the defendant to prove his affirmative defenses, which cannot be done in proceedings on a motion to dismiss.
Ground (3) apparently relates to matters of proof which the defendants might be required to show in proving their title and are not matters to be urged in a motion to dismiss. Ground (5) is also a matter to be pleaded in an answer.
Therefore it appears that the trial court could have properly dismissed the complaint only because of ground (1) of the motion to dismiss i. e. because the complaint failed to state a cause of action. We cannot agree that the complaint failed to state a cause of action.
As we stated above the complaint alleged the essentials required under the statute Sec. 70.03, F.S.A.
It is true, however, that the plaintiff in addition to...
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Brown v. Brown
...here the counterclaim, is not an appropriate vehicle for dismissal based on affirmative defenses such as res judicata, see Hough v. Menses, 95 So.2d 410 (Fla.1957); Vaswani v. Ganobsek, 402 So.2d 1350 (Fla. 4th DCA 1981); In re Estate of Donner, 364 So.2d 757 (Fla. 3d DCA 1978); Chambers v.......
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...DCA 1989); Black's Law Dictionary 482 (9th ed. 2009). The defendant has the burden of proving an affirmative defense. See Hough v. Menses, 95 So.2d 410, 412 (Fla.1957). Specifically, a defending party's assertion that a plaintiff has failed to satisfy conditions precedent necessary to trigg......
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Pride v. Peterson, 53628
...Davis v. Bonebrake, supra, was cited with approval in McPherson v. McPherson, 145 Colo. 170, 171, 358 P.2d 478, 479. In Hough v. Menses, Fla., 95 So.2d 410, 412, the court said: 'Grounds (2) (res judicata) and (4) (the statute of limitations barred plaintiff from recovery) of the motion to ......
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...matter constituting an avoidance or affirmative defense”). The defendant has the burden to prove an affirmative defense. Hough v. Menses, 95 So.2d 410, 412 (Fla.1957). Statutes of limitations “bar actions by setting a time limit within which an action must be filed as measured from the accr......
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...of the opposing party's claim. They raise some new matter which defeats an otherwise apparently valid claim.").[34] See Hough v. Menses, 95 So. 2d 410, 412 (Fla. 1957).[35] See Thompson v. Bank of N.Y., 862 So. 2d 768, 770 (Fla. 4th DCA 2003); Zito v. Washington Federal Sav. & Loan Assoc., ......