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Attorney(S)

Murrell, Fleming Flowers, for petitioners. Louis M. Jepeway S. Erroll Mestreazat, for respondents.

Judges

Paul D Barns
Alto Adams

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Smart Summary

Case Summary: Samuel Weiss & Sol Gewanter, Co‑Partners, d/b/a Cooper Liquors v. Joseph Marcus & Al Coldman

Supreme Court of Florida, Division B — March 19, 1948. Appeal from Circuit Court for Dade County (Charles A. Carroll, Judge). Petition for certiorari under Rule 34. Opinion by Barns, J.; Terrell, Terrell Acting Chief Justice, Sebring, Chapman and Adams noted as concurring (Adams concurring specially).

Factual and Procedural Background

This matter is a petition for certiorari under Rule 34 seeking review of an interlocutory chancery order. The plaintiffs below filed a bill in chancery; the defendants filed an answer. The plaintiffs then set the cause down for hearing on a "motion for decree on bill and answer" pursuant to Section 63.40, F.S. 1941, F.S.A. At that hearing the chancellor entered an order denying the plaintiffs' motion for decree on bill and answer and, in accordance with the 1931 Chancery Act (section 40), granted the plaintiffs the right to proceed to trial notwithstanding denial of the motion. The plaintiffs petitioned this Court to review that interlocutory decree by certiorari.

Legal Issues Presented

Whether the interlocutory order denying the plaintiffs' motion for decree on bill and answer and granting the plaintiffs the right to proceed to trial was reviewable by certiorari under Rule 34.
Whether a hearing on a motion for decree on bill and answer is limited to consideration of the bill and the answer (excluding prior findings made on a temporary injunction), and whether the sufficiency of the answer may be tested by such a hearing under Section 63.40, F.S.A.
Whether the petition for certiorari complied with the requirements for designation of the order and particularity of alleged harmful error required for certiorari petitions (Rule 34 and related practice requirements as described by the Court).

Arguments of the Parties

Plaintiffs' Arguments

The plaintiffs contended that they had moved for a decree on bill and answer and that the decree appealed from (which denied the motion and allowed a trial) was improper because they did not wish to go to trial.
The plaintiffs asserted that all material facts were already established by the pleadings—either set forth in their bill and admitted by the defendants in their answer, or shown in the defendants' pleadings or in orders of the court—such that a trial was unnecessary.

Respondents' Arguments

The opinion does not contain a detailed account of the respondents' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Schupler v. Eastern Mortgage Co., 33 So.2d 586, 592	Construction of Section 63.40 and the proposition that the sufficiency of an answer as a defense may be tested by setting the cause down for a hearing on a "motion for decree on bill and answer," where the allegations of the answer, according to their legal effect, will control over the allegations of the bill.	The Court cited Schupler as the "last construction" of Section 63.40 and relied on it to explain that a hearing on bill and answer tests the sufficiency of the answer and that the court may be guided by the pleadings' legal effect at such a hearing.
Whittaker v. Eddy, 109 Fla. 535, 147 So. 868	Support for the principle that, on hearing on bill and answer, the legal effect of the allegations of the answer will predominate and control over the allegations of the bill; authority for entering an order or final decree guided by the pleadings at such a hearing.	The Court cited Whittaker to reinforce the rule that a court may, on such a hearing, enter an order or final decree in accordance with the equities and the effect of the pleadings.
Baker v. Hi Hat, 159 Fla. 286, 31 So.2d 275	Cited by the concurring justice (Adams, J.) as authority supporting dismissal of the suit.	In his special concurrence Justice Adams stated he concurred in the opinion and judgment but also believed the suit should be dismissed pursuant to the authority of Baker v. Hi Hat.

Court's Reasoning and Analysis

The Court began by identifying the nature of the proceeding as a petition for certiorari under Rule 34 to review an interlocutory chancery order. It emphasized procedural prerequisites for such petitions: they must designate the particular order or decree to be reviewed and must show with particularity the alleged harmful error; if supporting matters are lengthy, they should be pleaded according to their tenor and effect with appropriate page references to the record.

Turning to the merits of the challenged interlocutory decree, the Court explained the scope of a hearing on a "motion for decree on bill and answer" under Section 63.40, F.S.A. It stated that, on such a hearing, the only matters to be considered are the plaintiffs' bill and the defendants' answer, and that findings made earlier on a hearing for a temporary injunction are not relevant at that proceeding. The Court quoted Schupler v. Eastern Mortgage Co. to state the controlling principle: the sufficiency of the answer may be tested by setting the cause down for such a hearing, and on that hearing the allegations of the answer, according to their legal effect, will predominate and control over the allegations of the bill.

The Court further observed that upon a hearing on bill and answer it is appropriate, subject to further proceedings permitted by Section 63.40, for the court to enter either an order or a final decree in accordance with the equities and guided by the pleadings and their legal effect. The Court applied these governing principles to the record before it and concluded that the interlocutory order at issue warranted review.

Having applied the procedural requirements for certiorari petitions and the substantive rule governing hearings on bill and answer, the Court granted the petition and quashed the order of the chancellor.

Justice Adams, concurring specially, agreed with the opinion and judgment but added that, in his view, the suit should be dismissed pursuant to the authority of Baker v. Hi Hat. The concurrence did not set out further analysis in the opinion text.

Holding and Implications

The petition for certiorari was granted and the interlocutory order denying the plaintiffs' motion for decree on bill and answer (and granting the plaintiffs leave to proceed to trial) was quashed.

Implications: The direct effect of the decision is to set aside the trial court's interlocutory order under review. The opinion applies existing statutory and case law (Section 63.40, Schupler, Whittaker) concerning the procedure and scope of hearings on motions for decree on bill and answer, but the opinion itself operates to quash the specific order rather than to announce a novel legal rule. Justice Adams' special concurrence noted that, under Baker v. Hi Hat, the suit should be dismissed, calling for a different (dismissal) remedy than the one reached by the majority opinion.

Sources drawn exclusively from the provided opinion text. No information beyond the opinion was added.

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SAMUEL WEISS and SOL GEWANTER, Co-Partners, d/b/a COOPER LIQUORS, v. JOSEPH MARCUS and AL COLDMAN.

BARNS, J.:

This is a petition for certiorari under Rule 34 to review an interlocutory order in chancery.

Petitions for certiorari to review trial court's rulings must designate particular order or decree of which review is sought and also show with particularity alleged harmful error, and, if matters supporting charge of error are too lengthy to be copied into petition in haec verba they should be pleaded according to their tenor and effect with appropriate page references to the record.

The plaintiffs below filed a bill, to which the defendants filed their answer and thereupon the plaintiffs set the cause down for hearing on "motion for decree on bill and answer" pursuant to Section 63.40 F.S. 1941, F.S.A. And upon the hearing the chancellor decreed as follows:

"It is hereby ordered that the plaintiff's motion for decree on bill and answer be and the same hereby is denied. In accordance with the provisions of Section 40 of the 1931 Chancery Act the plaintiff shall have the right to proceed to trial notwithstanding the denial of said motion for decree on bill and answer."

This decree petitioners now seek to have reviewed. Plaintiffs' position in their petition for certiorari is that:

"The plaintiffs made a motion for decree on bill and answer, and the decree appealed from denied this motion and gave the plaintiffs the right to proceed to trial. The plaintiffs do not care to go to trial inasmuch as all of the facts are set forth in the pleadings of the plaintiffs admitted by the defendants or in the pleadings of the defendants, or in the orders of Court."

Of course upon hearing on bill and answer the only matters to be considered by the chancellor are the plaintiffs' bill and the defendants' answer, and the facts found by the court in its preliminary order upon a hearing upon application for a temporary injunction are of no consequence at such a hearing.

The last construction of this Court of the foregoing Section will be found in the case of Schupler v. Eastern Mortgage Co., 33 So.2d 586, 592, wherein it was stated:

"The sufficiency of the answer as a defense may be tested by setting the cause down for a hearing on a 'motion for decree on bill and answer' as provided by Sec. 63.40, F.S.A., upon which hearing the allegations of the answer, according to their legal effect, will predominate and control over the allegations of the bill. See Whittaker v. Eddy, 109 Fla. 535, 147 So. 868."

Upon a hearing upon bill and answer it is appropriate for the Court, subject to further proceedings provided for by Section 63.40, supra, to enter an order for or a final decree, in accordance with the equities, being guided by the allegations of the pleadings and the effect thereof on such a hearing. See Whittaker v. Eddy, supra.

The petition is granted and the order quashed.

TERRELL, Acting Chief Justice, and SEBRING, JJ., concur.

CHAPMAN and ADAMS, JJ., concur specially.

ADAMS, J., concurring specially:

I concur in the opinion, conclusion and judgment but am also of the opinion that the suit should be dismissed pursuant to authority of Baker v. Hi Hat 159 Fla. 286, 31 So.2d 275.

TERRELL, Acting Chief Justice, CHAPMAN and SEBRING, JJ., concur.

WEISS v. MARCUS