State Ex Rel. Moore v. Gillian

• Decision Date: 09 February 1940
• Citation: 193 So. 751,141 Fla. 707
• Parties: STATE ex rel. MOORE v. GILLIAN et al.
• Court: Florida Supreme Court

193 So. 751

141 Fla. 707

STATE ex rel. MOORE v. GILLIAN et al.

Florida Supreme Court, Division A.

February 9, 1940

Rehearing Denied Feb. 27, 1940.

Certiorari to Circuit Court, Escambia County; L. L. Fabisinski, Judge.

Proceeding by the State, upon relation of L. E. Moore, relator, against M. C. Gillian, Jr., and another, trading and doing business under the name of Local Finance Company. To review an order denying motion to dismiss amended bill of complaint and overruling demurrer to amended bill of complaint, respondents bring certiorari.

Writ of certiorari quashed.

COUNSEL

Pat Whitaker, of Tampa, J. McHenry Jones and Philip D. Beall, both of Pensacola, and R. F. Maguire, and Maguire Voorhis & Wells, all of Orlando, for petitioners.

George Couper Gibbs, Atty. Gen., Thomas J. Ellis, Asst. Atty. Gen and Coe & McLane, of Pensacola, for respondents.

J Edwin Holsberry, of Pensacola, Wendell C. Heaton, of Tallahassee, and Joseph A. Padway, of Milwaukee, Wis., amici curiae.

OPINION

BUFORD Justice.

On certiorari granted under Rule 34 we review order denying motion to dismiss amended bill of complaint and overruling demurrer to amended bill of complaint.

The bill is not without equity. Motion to dismiss takes the place of demurrers as they were used prior to the 1931 Chancery Practice Act, Acts 1931, c. 14658.

The bill of complaint is not to be measured by the prayer.

'It would seem that no objection to the prayers of the bill can be raised by motion to dismiss because if the bill states a case entitling the plaintiff to any relief under any special prayer or under the implied prayer for general relief, it will not be dismissed. See Phifer v. Abbott, 73 Fla. 402, 74 So. 488; Florida Southern R. Co. v. Hill, 40 Fla. 1, 23 So. 566, 74 Am.St.Rep. 124; [City of] Orlando v. Equitable Bldg. & Loan Ass'n, 45 Fla. 507, 33 So. 986; Brokaw v. McDougall, 20 Fla. 212; Isleworth Grove Co. v. Orange County, 79 Fla. 208, 84 So. 83; Raulerson v. Peeples, 79 Fla. 367, 84 So. 370; South Florida Citrus Land Co. v. Walden, 59 Fla. 606, 51 So. 554; White Engineering Corp. v. People's State Bank, 81 Fla. 35, 87 So. 753; Hewitt v. Punta Gorda State Bank, 108 Fla. 39, 145 So. 883.' McCarthy's Chancery Practice Act, page 76.

The amended bill of complaint in effect alleges that respondents, holding themselves out as 'Salary buyers,' are engaged in the short loan business and unlawfully exact and require the payment of usurious interest on such loans and that such practice constitutes a violation of the criminal and civil laws of Florida, is a menace to the public welfare and is abatable as a public nuisance.

It may be that under the allegations of the amended bill of complaint the plaintiff may be able to show that respondents indulge in practices which are unlawful and constitute a menace to public welfare, the continuance of which the State may invoke the aid of the Court of Chancery to enjoin, but it does not follow necessarily that the scope of such injunctive relief may be extended to depriving the respondents of the use of their property, their trade-name and their business location for the conducting of their lawful...