Smith v. Barnett Bank of Murray Hill, FF-273
Decision Date | 26 September 1977 |
Docket Number | No. FF-273,FF-273 |
Citation | 350 So.2d 358 |
Parties | Jack D. SMITH a/k/a Jack Dempsey Smith and Mary N. Smith a/k/a Mary Nell Smith, his wife, Appellants, v. BARNETT BANK OF MURRAY HILL, a State Banking Corporation, Appellee. |
Court | Florida District Court of Appeals |
William A. MacGuire, Stephen H. Davis and Robert W. Elrod, Jacksonville, for appellants.
George L. Hudspeth and Alan Chipperfield of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
This is an interlocutory appeal in a mortgage foreclosure proceeding, formerly cognizable in equity. Fla.App.R. 4.2a. Defendants complain principally of the trial court's order which set counterclaim issues of usury for trial with the foreclosure issues without a jury and which dismissed Count II of defendants' second amended counterclaim and their second amended affirmative defense alleging fraud. The trial court properly dismissed the fraud defense and counterclaim with prejudice after defendants failed in three pleading attempts. We reverse the order setting the usury counterclaim for trial without a jury.
The Declaration of Rights secures the right of jury trial for cases in which a jury trial was traditionally afforded at common law. Article I, Section 22, Florida Constitution; Flint River Steamboat Co. v. Roberts, Allen & Co., 2 Fla. 102 (1848); Buckman v. State ex rel. Spencer, 34 Fla. 48, 15 So. 697 (1894). No right of action for recovery of usurious interest paid or other damages was afforded at common law. Coe v. Muller, 74 Fla. 399, 77 So. 88 (1917); Matlack Properties, Inc. v. Citizens & Southern Nat'l Bank, 120 Fla. 77, 162 So. 148 (1935). However, an action for the recovery of money as damages was among the class of cases in which the common law afforded a right of jury trial. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Waddell v. State ex rel. Meeks, 235 Ark. 293, 357 S.W.2d 651 (1962).
The right of action afforded by Section 687.04, Florida Statutes (1975) is a right of action for money damages, for which a jury trial is appropriate. It is insignificant to the determination of counterclaimants' right to a jury trial that the right of action they assert is created by statute rather than by common law. If the rule were otherwise, claims for money damages based on modern legislation would be subject to denial of a jury trial, and the right to jury trial would shrink as time and legislation change the citizen's rights of redress and access to the courts. Compare Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 29, 36 S.Ct. 233, 234, 60 L.Ed. 505, 507 (1916) (); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504, 79 S.Ct. 948, 953, 3 L.Ed.2d 988, 994 (1959) (...
To continue reading
Request your trial-
King Mountain Condominium Ass'n v. Gundlach
...case law for guidance in developing a suitable test. See High Tower v. Bigoney, 156 So.2d 501 (Fla.1963); Smith v. Barnett Bank of Murray Hill, 350 So.2d 358, 359 (Fla. 1st DCA 1977); Dobbs, Remedies § 2.6 at 80 n. 53 (1973 West). The federal test is often phrased in terms of whether, "the ......
- State v. Coleman
-
B.J.Y. v. M.A.
...v. City of Jacksonville, 34 Fla. 504, 16 So. 398 (Fla.1894), or to traditional notions of common law, see Smith v. Barnett Bank of Murray Hill, 350 So.2d 358 (Fla. 1st DCA 1977), or to common law as known and practiced when the constitution became effective. See Hawkins v. Rellim Inv. Co., ......
-
United Companies Fin. Corp. v. Brantley, Civ. No. 80-9036.
...is, upon demand, entitled to a jury trial upon that issue prior to proceeding with the foreclosure. See, Smith v. Barnett Bank of Murray Hill, 350 So.2d 358 (1 D.C.A.Fla. 1977); Adams v. Citizens Bank of Brevard, 248 So.2d 682 (4 D.C.A. Fla. 1971). Also, when usury is established the court ......