Williams v. Covell, M--443
| Decision Date | 16 June 1970 |
| Docket Number | No. M--443,M--443 |
| Citation | 236 So.2d 447 |
| Parties | Raymond WILLIAMS, Petitioner, v. A. B. COVELL, Respondent. |
| Court | Florida District Court of Appeals |
Logue, Bennett & Williams, Panama City, for petitioner.
George Ralph Miller, of Campbell & Andrews, Defuniak Springs, for respondent.
The appellant herein has termed himself as 'Petitioner' and this proceeding has been termed an Interlocutory Appeal and an Interlocutory Application for Writ of Certiorari. The Respondent has accepted these terms without question and responded as if to an application for a writ of certiorari, but states his 'point on interlocutory appeal.' However, the point of law raised as constituting error on the part of the lower court is: 'Whether or not the court erred in denying the defendant's motion to dismiss on the grounds that the cause of action was barred by the Statute of Limitations.'
Complaint was filed on April 19, 1963, by Respondent herein, as plaintiff below, wherein the plaintiff sued the defendant, appellant-petitioner herein in damages for certain paving of a filling station site in November and December 1960, pursuant to an oral contract. The record shows that a summons was not issued by the clerk of the court in which the complaint was filed, until June 4, 1969, and service had on June 6, 1969.
The defendant below filed his motion to dismiss the complaint and as one of the three grounds therefor alleged: 'That the complaint affirmatively shows on its face that the plaintiff's cause of action is barred by the Statute of Limitations.' This motion was denied and this appeal taken from such order.
Without attempting to enlighten the respective counsel as to the proper nomenclature for this proceeding, we will answer the question posed as error.
F.C.P. Rule 1.110(d), 30 F.S.A. provides, inter alia, as follows: 'Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under Rule 1.140(b) * * *.'
The motion to dismiss the complaint in this case alleged as the ground upon which this appeal is hinged, 'That the complaint affirmatively shows on its face that the plaintiff's cause of action is barred by the Statute of Limitations.' The motion limited its scope to the complaint only.
A reading of the complaint clearly shows that the same was filed within three years after the alleged accrual of the cause of action, which is the applicable Statute of Limitation for such...
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B. B. S. v. R. C. B.
...that the action was barred by the statute of limitations, and, therefore, such defense should be raised by answer. Williams v. Covell, Fla.App.1970, 236 So.2d 447. See also Kest v. Nathanson, Fla.App.1969, 216 So.2d 233, and Geer v. Bennett, Fla.App.1970, 237 So.2d 311, which held that 'the......
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Adams v. Knabb Turpentine Co., Inc., AN-344
...on the face of the complaint. Johnson v. Johnson Chrysler/Plymouth, Inc., 389 So.2d 690 (Fla. 4th DCA 1980); Williams v. Covell, 236 So.2d 447 (Fla. 1st DCA 1970). In the case at bar, it may be that some or all of appellants' causes of action are barred by the statute of limitations, but th......
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Hanano v. Petrou, 94-4067
...v. Ross, 481 So.2d 939, 940 (Fla. 2d DCA 1985); Toledo Park Homes v. Grant, 447 So.2d 343, 344 (Fla. 4th DCA 1984); Williams v. Covell, 236 So.2d 447, 448 (Fla. 1st DCA 1970). In the instant case, although the complaint does state that the surgery which is the subject of this action was per......
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Gonzales v. Martin, 74-1048
...for writ of certiorari to Circuit Court, Dade County; Sam I. Silver, Judge. PER CURIAM. Certiorari dismissed. See Williams v. Covell, Fla.App.1970, 236 So.2d 447 and Friday v. Newman, Fla.App.1966, 183 So.2d ...