Seeba v. Wolf Bros. Shoe Co.

• Decision Date: 02 February 1917
• Citation: 73 Fla. 227,74 So. 204
• Parties: SEEBA v. WOLF BROS. SHOE CO. et al.
• Court: Florida Supreme Court

74 So. 204

73 Fla. 227

SEEBA v. WOLF BROS. SHOE CO. et al.

Florida Supreme Court

February 2, 1917

Appeal from Circuit Court, St. Johns County; George Couper Gibbs Judge.

Bill in chancery by William F. Seeba against the Wolf Bros. Shoe Company and others. Demurrer of the Wolf Bros. Shoe Company sustained, and complainant appeals. Order reversed.

Syllabus by the Court

SYLLABUS

It is not the province of a demurrer, either in an action at law or suit in equity, to set out the facts; it involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of the pleadings which arise on the face thereof.

In passing upon a demurrer to a bill in equity, matters dehors the bill cannot be considered, but only such matters as appear upon the face of the bill.

COUNSEL Alex. St. Clair-Abrams, of Jacksonville, for appellant.

E Noble Calhoun, of St. Augustine, and Butler & Boyer, of Jacksonville, for appellees.

OPINION

SHACKLEFORD J.

William F. Seeba filed his bill in chancery against Philip Kukowsky Gussie Kukowsky, his wife, Wolf Bros. Shoe Company, a corporation, and Stringfellow & Doty Company, a corporation for the enforcement of several liens upon certain described real and personal property, alleged to have been created by the execution of mortgages by Philip Kukowsky and his wife to the complainant for the purpose of securing the payment of certain indebtedness due to the complainant from Philip Kukowsky. Wolf Bros. Shoe Company and Stringfellow & Doty Company were made defendants for the reason that they claimed to have liens upon the land described in the bill, the allegations as to the liens of such two defendant corporations being as follows:

'And, further complaining, your orator says that he is informed and believes that the Wolf Bros. Shoe Company, a corporation doing business in Columbus, Ohio, and Stringfellow & Doty Company, a corporation under the laws of the state of Florida and doing business in Jacksonville, Duval county, Fla., claim a lien on the land herein described, the said Wolf Bros. Shoe Company by virtue of a judgment against the said Philip Kukowsky for $392.54, dated April 1, 1912, and the said Stringfellow & Doty Company by virtue of a judgment against the said Philip Kukowsky for $320.78, dated March 6, 1911.

'And your orator says that on the 6th day of December, 1910, the Wolf Bros. Shoe Company, with other creditors, filed a petition to declare the said Philip Kukowsky a bankrupt, and afterwards the said Philip Kukowsky filed a schedule of his entire indebtedness up to the 6th day of December, 1910, and included in said schedule the names of the Wolf Bros. Shoe Company and the Stringfellow & Doty Company, two of the defendants herein.

'And your orator says that, under and in pursuance of the bankruptcy laws of the United States, as shown from the record of the bankruptcy proceedings, due notice was forwarded to all of the creditors of the said Philip Kukowsky, including the defendants the Wolf Bros. Shoe Company and the Stringfellow & Doty Company; that in the petition of the creditors to declare the said Philip Kukowsky a bankrupt the Wolf Bros. Shoe Company represented that the said Philip Kukowsky was indebted to it in the sum of $348.37; and in the schedule of indebtedness filed the said Stringfellow & Doty Company is represented as being a creditor in the sum of $195.09. And your orator says that, pursuant to the bankruptcy laws, both the Wolf Bros. Shoe Company and the Stringfellow & Doty Company were duly notified to appear and prove their claims. And your orator says that after due and proper proceedings the said Philip Kukowsky, by a decree of discharge made and ordered in open court by the Honorable Jas. W. Locke, judge, was discharged from all debts and claims which are made provable by the Bankruptcy Act of Congress against his estate and which existed on the 6th day of December, 1910, on which day the petition for adjudication was filed against him, the said Philip Kukowsky, excepting such debts as are by law excepted from the operation of the discharge in bankruptcy.

'And, further complaining, your orator says that the debt and claim of Stringfellow & Doty Company, a corporation, existed on and prior to the 6th day of December, 1910, and the debt of Wolf Bros. Shoe Company, a corporation, existed on and before the 6th day of December, 1910, and were not debts excepted from the operation of the discharge in bankruptcy.

'And your orator further says that the said Philip Kukowsky was, by virtue of the proceedings in bankruptcy, as herein set forth, discharged from the debts and claims of the said Wolf Bros. Shoe Company, a corporation, and Stringfellow & Doty Company, a corporation.

'And your orator further says that the judgment against Philip Kukowsky in favor of Stringfellow & Doty Company, dated March 6, 1911, was for an indebtedness existing on...