48 Fla. 268 | Fla. | 1904
Lead Opinion
This cause is submitted here upon abstracts of the record under Rule 20, and, as they have not been excepted to as provided for in the said rule, such abstracts are admitted to be a true statement of the material substance of the pleadings in the cause. The case will be considered as provided by the rule on the abstracts alone. It appears from such abstracts that “on September 29, 1903,
The allegations of the bill, as shown by the abstracts, do not state a cause for equity cognizance to enforce specific performance of a contract for the sale of personal property. Dorman v. McDonald, 47 Fla. 252, 36 South. Rep. 52.
The abstracts fail to show that the bill contained any ground for the interposition of a court of equity. City of Jacksonville v. Massey Business College, 47 Fla. 339, 36 South. Rep. 432, and cases therein cited.
The decree is reversed at the cost of the appellee, and the cause is remanded with directions to dismiss the bill of complaint, without prejudice.
Taylor, C. J., Shackleford and Cockrell, JJ., concur.
Carter, J., absent.
Dissenting Opinion
(dissenting). — I can not concur in the opinion that this court under the circumstances of this case, should ex mero motu, raise the question of the jurisdiction of equity as applied to the facts of the case. The acts charged against the defendant of changing the marks and brands of the cattle, and of disposing of them so as to defeat complainant’s rights, amount to charges of fraud. Moreover, the bill prays for an accounting and discovery. These are matters of equity jurisdiction, and, in the absence of a demurrer or plea raising the question of jurisdiction, and the case having gone to a hearing on its merits, I think this court should review the final decree appealed from. 1 Cyc. 420; Reynes v. Dumont, 130 U. S. 354, 9 Sup. Ct. Rep. 486; Kilbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. Rep. 594; Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. Rep. 340; DeCottes v. Clarkson, 43 Fla. 1, 29 South. Rep. 442.