Manning v. Clark
| Decision Date | 16 March 1954 |
| Citation | 71 So.2d 508 |
| Parties | MANNING et al. v. CLARK et al. |
| Court | Florida Supreme Court |
Anderson & Nadeau, Miami, for appellants.
Daniel Sepler and Boyce F. Ezell, Jr., Miami, for appellees.
This case is before us a third time. See Manning v. Clark, Fla., 56 So.2d 521; Manning v. Clark, Fla., 62 So.2d 352.
When the lower court transferred the cause to the law side of the court following the mandate in the last appeal, provision was made for filing new pleadings but the lower court ordered the bond of $10,000 referred to in the second appeal continued 'in full force and subject to the further order of this Court as to the interests of the plaintiffs therein.' Pursuant to this order appellees Clark and Baker filed a complaint alleging that appellant Manning was indebted to them in the sum of $9,000 on account of advances made to Manning pursuant to a letter written by Manning to Clark in which it is stated, inter alia, 'It is understood by me that all monies advanced by you for shipping equipment and personal [sic] is to be returned out of the gross receipts.' (Italics supplied.)
Appellant Manning filed motion to dismiss, answer and counterclaim. The answer denied the indebtedness, and alleged a departure in pleading from that taken in a former motion with reference to the amount claimed. The counterclaim alleged that advances made by Clark were to be paid out of profits and that there were no profits. The counterclaim further alleged that Clark wrongfully filed the bill for accounting, injunction, recovery and other relief (discussed and disposed of in the first appeal) and that by reason thereof he, Manning, incurred the following expenses and suffered the following damages: hotel charges for himself and others during the period of receivership; $1,294.95 for Master's fees, receivership fees and accountant's fees; $2,500 attorneys' fees and bond fees in an amount unnamed.
The lower court sustained a motion by Clark to strike portions of Manning's answer (the portion relating to a departure in pleading) and all of his counterclaim. In the same order he overruled Manning's motion to dismiss the complaint. At the same time he granted Clark's motion for a summary judgment and entered final judgment as follows:
'This Cause came on to be heard upon the Motion of the plaintiffs for the entry of a Final Judgment, and it appearing from the pleadings, testimony, evidence and admissions on file in this cause that there is no genuine issue as to any material fact, and that the plaintiffs are entitled to a Final Judgment as a matter of law; and it appearing unto the Court that no further testimony or evidence could be elicited which would tend to show there to be a genuine issue as to any material fact; and the parties to this cause being represented before me by their respective counsel; and after hearing argument of counsel, and the Court being fully advised in the premises, it is:
'Ordered and Adjudged, as follows:
This appeal is from the above judgment.
The first question presented concerns that part of the order transferring the cause wherein the lower court continued the $10,000 bond posted in the Chancery suit in full force and effect. The opinion in the last appeal (62 So.2d 352) disposed of this question. This bond is not subject to a judgment that might be entered in the common law suit.
The next question presented is whether the lower court could lawfully use the record in the Chancery case as a basis for the rendition of a summary judgment.
The rule pertinent to this inquiry is Rule 43 of the Common Law Rules, 30 F.S.A. The part of that rule with which we are now concerned provides, 'The judgment sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Emphasis added.)
When a cause is transferred to the law side of the court after it has been commenced in equity as provided by Equity Rule 75, 31 F.S.A., and when the transfer is to the law side of the same court (as it is here) the order of transfer makes the original papers in the equity case a part of the common law case so far as they may be applicable. This is plain from the very language of the Rule itself and such conclusion is certainly in accordance with the spirit thereof. If there are depositions and admissions in the Chancery suit and if such are germane to the issues made up in the common law action we can think of no good reason why they should not be used in the disposition of a motion for summary judgment, and hold that they can be so used. Compare Bradley v. Associates Discount Corp., Fla., 67 So.2d 913.
Having determined that the lower court was correct in using the papers originally in the Chancery suit, we now direct our attention to the proposition of whether a consideration of these papers (no additional affidavits were filed), together with the new issues and rulings on the law side of the court, authorized the lower court to conclude that there was no genuine issue of any material fact and that the appellees were entitled to a judgment as a matter of law. In Williams v. City of Lake City, Fla., 1953, 62 So.2d 732, 733, we discussed the circumstances under which summary judgments should be entered. Some uncertainty may have been created...
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...Bank, 436 So. 2d 338, 340 (Fla. 1st DCA 1983)).[19] Williams v. City of Lake City, 62 So. 2d 732, 733 (Fla. 1953).[20] Manning v. Clark, 71 So. 2d 508, 510 (Fla. 1954).[21] The Florida Bar v. Mogil, 763 So. 2d 303, 307 (Fla. 2000) (quoting Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979))......