Public-domain · open source
OpenJurist

141 Fla. 707

193 So 751

State Ex Rel. Moore v. Gillian

Supreme Court of Florida

Decided February 9, 1940

Supreme Court of Florida · decided 1940-02-09

Relies on Hewitt Hewitt v. Punta Gorda State Bank · City of Olando v. Equitable Building & Loan Ass'n · Phifer v. Abbott

Good law ✅— No negative treatment on recordhow we know

Decided 1940-02-09

How this case has been cited

Cited by 15 later decisions — most recently June 1974

1 federal appellate · 14 state decisions

501940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Buford, J.

¶1 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.

¶2 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.

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

¶4 “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 *709 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; Fla. So. R. Co. v. Hill, 40 Fla. 1, 23 So. 566, 74 A. S. R. 124; Orlando v. Equ. Bldg., etc., Assn., 45 Fla. 507, 33 So. 986; Brokaw v. McDougal, 20 Fla. 212; Isle-worth Grove Co. v. Orange County, 79 Fla. 208, 84 So. 83; Raulerson v. Peeples, 79 Fla. 367, 84 So. 370; South Fla. Citrus Land Co. v. Walden, 59 Fla. 606, 51 So. 554; White Engr. Co. v. Peoples St. Bank, 81 Fa. 35, 87 So. 753; Hewitt v. Punta Gorda State Bk., 108 Fla. 39, 145 So. 883.” McCarthy’s Chancery Practice Act, page 76.

¶5 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.

¶6 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 business in an orderly and lawful manner. See Fasson v. State ex rel. Burton, filed at this term of the Court.

¶7 The writ of certiorari is quashed.

¶8 So ordered.

Terrell, C. J., and Thomas, J., concur. *710 AVhitfield, J., concurs in opinion and judgment. Justices Brown and Ci-iapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
/141/fla/707 · .json · Public domain