North v. Ringling

• Decision Date: 06 July 1938
• Citation: 182 So. 582,133 Fla. 117
• Parties: NORTH et al. v. RINGLING.
• Court: Florida Supreme Court

182 So. 582

133 Fla. 117

NORTH et al. v. RINGLING.

Florida Supreme Court

July 6, 1938

Suit by Emily Ringling against Ida Ringling North and another, as executors of the last will and testament of John Ringling deceased, to foreclose a chattel mortgage. From an order refusing to dismiss the bill of complaint, the defendants appeal.

Appeal dismissed. Appeal from Circuit Court, Sarasota County; W. T. Harrison, judge.

COUNSEL

John F Burket, of Sarasota, for appellants.

Milam McIlvaine & Milam, of Jacksonville, for appellee.

OPINION

PER CURIAM.

The bill of complaint here seeks to foreclose a chattel mortgage given by John Ringling and wife to Emily Ringling for a large sum of money borrowed prior to marriage and evidenced by a promissory note signed by John Ringling and chattel mortgage signed by John Ringling and wife. The suit was filed in Sarasota County, Florida, September 16, 1937. The bill is in the usual form.

Two motions were filed, with notice thereof had on counsel for appellants, to dismiss the bill of complaint: One by Ida Ringling North, one of the Executors of the Will of John Ringling, deceased; and the other motion by another Executor of the Will. The ground for dismissing the bill of complaint is that the same is without equity. The lower court denied each of the motions to dismiss and ordered the defendants to plead or answer on a day certain. From this order the case was appealed to this Court and the order assigned as error.

The motion here is to quash and dismiss the appeal because it is against good faith, seeks a delay and is frivolous.

This Court under Section 4639, C.G.L., has the power to quash proceedings in error in all cases when taken merely for the purpose of delay, and it is further authorized thereby to decree damages not to exceed ten per cent against the plaintiff when these dilatory proceedings enumerated therein are resorted to. In the case of Willey v. Hoggson, 89 Fla. 446, text page 456, 105 So. 126, text page 130, this Court had before it Section 4639, supra, when it said 'It is not the purpose of sections 2920 and 3173, Revised General Statutes of 1920, to require the court upon motions to quash, based upon the ground that the proceedings are taken merely for delay, to enter into an examination of or decide doubtful or debatable questions properly raised by the assignments of error; but its purpose is to enable the court to quash such proceedings where the assignments of error are so plainly and palpably without merit as to lead to the conclusion that the...