Singer v. Tobin
| Citation | 201 So.2d 799 |
| Decision Date | 27 June 1967 |
| Docket Number | No. 66--711,66--711 |
| Parties | Harry SINGER and Phillip Schiff, Appellants, v. Ben TOBIN, Appellee. |
| Court | Court of Appeal of Florida (US) |
Dubbin, Schiff, Berkman & Dubbin, Miami, for appellants.
Koeppel & Stark, Miami, for appellee.
Before CHARLES CARROLL, BARKDULL and SWANN, JJ.
These appellants were the defendants below in an action for declaratory decree. The appellee, Tobin, filed his complaint in equity to determine his rights under a written agreement, and prayed for an equitable lien on certain real property in Pinellas County, Florida.
A lengthy hearing was held by the chancellor. The final decree of May 24, 1966 determined that it was the intention of the parties that Tobin have an equitable lien on the real property for the monies which he had advanced in the amount of $768,652.86; that the purposes of the agreement were to be carried out within a reasonable time, and that the purposes had not been fulfilled, and therefore the agreement was thwarted and terminated, and had come to an end.
The decree appointed one of the parties to sell the property at Dade County, Florida, after publishing notice in newspapers in Dade County and Pinellas County, Florida. The appeal is from this final decree.
The appellants contended for the first time at the final hearing that there was improper venue since the suit was an attempt to foreclose property in another county by a complaint filed in Dade County, Florida. The trial court determined that the question of improper venue had been waived by the failure to present it by proper motion prior to the trial. The rule is that a venue objection may be waived, and if not timely or sufficiently asserted, it is the defendant who must bear the consequences. Inverness Coca-Cola Bottling Company v. McDaniel, Fla.1955, 78 So.2d 100; Former Rule 1.11, Florida Rules of Civil Procedure, (now Rule 1.140, Florida Rules of Civil Procedure, 1967 Revision), 30 F.S.A.
In addition, it should be noted that this was not a foreclosure suit nor a suit affecting the title to the real property, but a suit seeking to establish an equitable lien by a declaratory decree, and that generally courts of equity have the fullest liberty in molding decrees to the necessity of the occasion, regardless of the prayer. See Kingdon v. Walker, Fla.App.1963, 156 So.2d 208.
A suit in equity may be maintained in any jurisdiction wherein the defendants can be found, even though the suit affects land not within the territorial jurisdiction of the court. Bailey v. Crum, 120 Fla. 36, 162 So. 356 (1935); Baum v. Corn, Fla.App.1964, 167 So.2d 740; McMullen v. McMullen, Fla.App.1960, 122 So.2d 626.
The agreement provided that the parties to the suit would purchase and develop a shopping center and that they would have various interests therein. None of the parties were to share in the net income derived from the sale of the project until such time as full and complete payment had been made to Tobin for the sums of money which he had advanced. Another portion of the contract provided that each of the parties obligated himself to do the matters and things required therein promptly and expeditiously, and that time was of the essence. The agreement, however, was...
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Ruth v. Department of Legal Affairs
...jurisdiction alone provides the court with the authority to determine the equitable rights of the two parties. See Singer v. Tobin, 201 So.2d 799, (Fla. 3d DCA 1967), cert. denied, 209 So.2d 672 Although a trial court with in personam jurisdiction may determine who as between the State and ......
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Golden v. Woodward, 1D08-3324.
...of equity have the fullest liberty in molding decrees to the necessity of the occasion, regardless of the prayer." Singer v. Tobin, 201 So.2d 799, 800-01 (Fla. 3d DCA 1967). An "equitable lien" is "[a] right, enforceable only in equity, to have a demand satisfied from a particular fund or s......
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Romano v. Olshen
...to satisfy the exigencies of the circumstances.”Schroeder v. Gebhart, 825 So.2d 442, 446 (Fla. 5th DCA 2002) (citing Singer v. Tobin, 201 So.2d 799, 800–01 (Fla. 3d DCA 1967) ). Thus, a court of equity is authorized to expansively construe Chapter 744 to protect the interests of a ward.Chap......
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Circle Finance Co. v. Peacock
...that the courts have the fullest liberty in molding decrees to the necessity of the action regardless of the prayer. Singer v. Tobin, 201 So.2d 799 (Fla.3d DCA 1967). See also Langford v. Wauchula State Bank, 148 Fla. 236, 4 So.2d 10 (1941), in which the bank sought a partition of certain f......
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Lien cases
...as applied to the relations of the parties and the circumstances of their dealings in the particular case. Source Singer v. Tobin , 201 So.2d 799, 801 (Fla. 3d DCA 1967), cert. denied , 209 So.2d 672 (Fla. 1968) (This case should be read along with Rinker Materials Corp. v. Palmer First Nat......