Lorenzo v. Murphy
| Decision Date | 07 November 1947 |
| Citation | 159 Fla. 639,32 So.2d 421 |
| Parties | LORENZO v. MURPHY, County Judge, et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Manatee County; W. T. Harrison judge.
M. Caraballo, of Tamps, and Dewey A. Dye, of Bradenton, for appellant.
Clyde H. Wilson, of Sarasota, and G. P. Smythe, of Bradenton, for appellees.
Waters F. Burrows and Elsa S. Burrows filed their petition in the County Court to remove tenants described by them as 'Jose Perez Lorenzo, as a partner, and as agent of the partnership of himself and the Estate of Marcelino Garcia, deceased.' In general they alleged that the lessee, Manuel F. Lopez, had assigned said lease to Jose Perez Lorenzo and Marcelino Garcia, the latter having subsequently died, and that said assignment was in violation of the terms of the lease. This lease contained a provision against assignment as follows:
But it will be noted that the clause which contained said provision also contains the following language:
'* * * provided lessee may at any time or from time to time have a bona fide partner or partners associated with him in a partnership in the conduct of his Bar, Cafe, and Restaurant business, and such relationship shall not be considered as a violation of this, or any covenant herein against subletting or assignment; * * *.'
Appellees notified Manuel F. Lopez that the lease had been terminated and then notified Jose Perez Lorenzo and Marcelino Garcia, who was then living, to the like effect. The proceedings to oust the named tenants were commenced after the death of Mr. Garcia.
In response to the court's summons, Lorenzo, appellant, answered by filing his affidavit on the 26th day of September, 1946, which in substance alleged that it was not true that Manuel F. Lopez had sold the cafe, bar, and restaurant business to affiant and Marcelino Garcia, in violation of the lease, nor was it true that the lease had been assigned as alleged; that appellees had been notified by Lopez that the said Lorenzo and Garcia were taking charge of said premises and would pay the rent; that a co-partnership had existed between the lessee, Lopez, the said Lorenzo and the said Garcia, and that Lorenzo and Lopez were the surviving co-partners; that Lopez had not been made a party to the suit and that the court was without jurisdiction to adjudicate the issues, owing to the failure of the appellees to make the said Lopez a party; that appellees, although they had full knowledge of all the above facts, failed to take any judicial steps to enforce their alleged claim until they had ascertained that Lopez had gone to Spain and that Garcia had died.
To this affidavit the appellees-plaintiffs filed a demurrer and motion to strike and it was on this pleading that the Judge of the County Court made the pronouncement which gave rise to the prohibition proceedings against him.
Appellees filed an amendment to the original petition raising the objection that defendants could not be heard to defend themselves for the reason that said restaurant was operated by a partnership under a fictitious name, and that said name had not been registered in accordance with Section 865.09, Florida Statutes of 1941, F.S.A.
To this amendment to the petition Lorenzo further answered, setting forth that the defendants' proceeding had used the name 'Garcia' or 'Garcia's Restaurant,' by virtue of an assignment of said name to Manuel F. Lopez in the lease of said premises and that by virtue thereof the appellees herein were estopped from setting up said defense and, in addition, contended that Section 865.09 did not apply, but that, if it did apply, it would apply to the appellees equally.
The demurrer above referred to came on to be heard before the County Court and the said Judge proceeded to state that in view of the allegation that these parties had not complied with the Fictitious Name Statute, Section 865.09, that he would proceed to enter a judgment sustaining said demurrer and petition and would enter a judgment dispossessing the tenants, whereupon the tenants instituted prohibition proceedings.
Upon a hearing on demurrer to the suggestion and on motion to quash the rule nisi, final judgment was rendered by the Circuit Judge as follows:
'It is further ordered and adjudged that the defendant, S. J. Murphy, as Judge of the County Court of Manatee County, Florida, be and he is hereby restrained and prohibited from denying a trial to defendants in the cause pending in said Court wherein Waters F. Burrows and Elsa S. Burrows are plaintiffs and Jose Perez Lorenzo, et al., are defendants, because of or by virtue of any alleged violation of the said Fictitious Name Statute by said defendants or either of them, and from entering any announced judgment against said defendants in said cause, based upon their failure or alleged failure to comply with said Fictitious Name Statute.'
The petitioner for prohibition, Lorenzo, not being satisfied with the foregoing judgment, brought an appeal to this Court and filed nine assignments of error, but argument by brief only goes to the charge that the Circuit Judge erred in that:
(a) The writ grants only partial relief, the relief granted being supervisory.
(b) The final judgment does not follow the rule nisi.
(c) The judgment was rendered without requiring return from the respondents.
The appellees on this appeal by brief argue the other assignments of error, 5 and 6, to-wit:
(5) The court erred in granting to the defendants the rights to defend the within action regardless of their failure to comply with the Fictitious Name Statute.
(6) The court erred in granting to the defendants any relief prayed for in their suggestion for writ of prohibition.
In the case of Peacock, County Judge, et al. v. Miller, decided February 28, 1936, as reported in 123 Fla. 97, 166 So. 212, this court held:
'Prohibition does not lie to prevent or correct commission of errors on part of court that is proceeding within its jurisdiction.'
In the case of Walters v. Blanton, County Judge, et al., decided December 8, 1936, as reported in 126 Fla. 428, 171 So. 230, this court held:
'Demurrer to suggestion for writ to prohibit county judge from exercising jurisdiction in suit involving unlawful detainer held sustained, where it did not appear from petition or suggestion for writ that county judge was without jurisdiction to hear and determine issues involved, or that he had exceeded or was about to exceed his jurisdiction.'
In the case of Adams et ux. v. Lewis et al., decided February 18, 1941, as reported in 146 Fla. 177, 220 So. 852, 853, this Court speaking through Mr. Justice...
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