Tollius v. Dutch Inns of America, Inc., 68--782

• Decision Date: 28 January 1969
• Docket Number: No. 68--782,68--782
• Parties: Gosta TOLLIUS, Appellant, v. DUTCH INNS OF AMERICA, INC., Alan B. Kessler and Jerome H. Weinkle, Appellees.
• Court: Florida District Court of Appeals

Page 504

218 So.2d 504

Gosta TOLLIUS, Appellant, v. DUTCH INNS OF AMERICA, INC., Alan B. Kessler and Jerome H. Weinkle, Appellees.

No. 68--782.

District Court of Appeal of Florida, Third District.

Jan. 28, 1969.

Rehearing Denied Feb. 25, 1969.

Hall & Hedrick, Miami, for appellant.

Shutts & Bowen and Herbert L. Nadeau, Scott, McCarthy, Steel, Hector & Davis and A. Dan Killian, Jr., Miami, for appellees.

Before PEARSON, BARKDULL and HENDRY, JJ.

PER CURIAM.

The appellant, Gosta Tollius, brings this interlocutory appeal from an order of the Circuit Court of Dade County, Florida, temporarily enjoining the appellant from proceeding in an unlawful detainer action he had instituted in the Civil Court of Record in and for Dade County, Florida.

The appellant filed his complaint in the civil court of record on the same day the appellees filed their complaint for declaratory judgment in the circuit court. The appellant's complaint was filed before the appellees' complaint. The subject matter of the two suits was the same. In the civil court of record action the appellant contended that because of a forfeiture of a ninety-nine year lease, he was entitled to possession of real property on which a motel had been built. The appellees' complaint alleged that the lease was valid and subsisting and prayed for a declaration to that effect. The complaint did not allege that the civil court of record suit had been filed but alleged simply that the landlord had declared the lease in default and had threatened legal proceedings. There is nothing in the record to show that at the time the appellees filed their complaint they knew that a complaint had been filed in the civil court of record. The appellees' petition for injunction, filed six days after the complaint, alleges that the appellees have no adequate remedy except in a court of equity. The circuit court entered an order which temporarily enjoined prosecution of the unlawful detainer action in the civil court of record.

The appellant did not immediately file his notice of appeal from the order entering the temporary injunction. He proceeded in the circuit court by filing an answer and counterclaim, by praying for the appointment of a receiver for the property involved, and by praying the court to implead a third party. The circuit court refused to appoint a receiver but did order the third party to be impleaded. Thereafter, the appellant filed his notice of appeal from the order granting the temporary restraining order.

The appellant presents us with the following points:

'THE CIRCUIT COURT ERRED IN RESTRAINING THE PROSECUTION OF AN UNLAWFUL DETAINER ACTION FILED BY THE APPELLANT, GOSTA TOLLIUS, AGAINST THE APPELLEES IN THE CIVIL COURT OF RECORD.'

'THE TRIAL COURT ERRED IN THE ENTRY OF A TEMPORARY INJUNCTION RESTRAINING THE PROCEEDINGS IN THE CIVIL COURT OF RECORD WHERE THE APPELLEES HAD NOT PREVIOUSLY PAID ALL COSTS.'

In his argument under the first point, the appellant urges that the circuit court should have...