160 So. 2d 729 | Fla. Dist. Ct. App. | 1964
Appellant, as plaintiff, instituted a chancery action seeking a declaratory decree of a certain notice forwarded to him by the appellee Board, to which complaint was filed a motion to dismiss for failure to state a cause of action. On said motion, the chancellor entered a final order of dismissal. The appellant seeks reversal of this order, and contends that it was erroneously entered by the chancellor in that it failed to award him a declaratory decree.
We agree with this contention. It is apparent from the allegations of the complaint which, on a motion to dismiss, must be taken as true [see: Bartholf v. Bartholf, Fla.App.1959, 108 So.2d 905; Jackson Tom, Inc. v. Carlton, Fla.App.1961, 133 So.2d 752]; that there was a real controversy between the appellant and the appellee and, as such, the plaintiff was entitled to a declaration of his rights pursuant to the provisions of Ch. 87, Fla.Stat. F.S.A. It is apparent from the chancellor’s order that he determined that the plaintiff could not prevail upon a final hearing. However, dismissing such a cause does not provide any determination of a plaintiff’s rights. See: May v. Holley, Fla.1952, 59 So.2d 636; 9 Fla.Jur., Declaratory Actions, § 48. The test of activation of jurisdiction to receive a declaratory decree is not whether the plaintiff will prevail, but whether he states a cause within the requirements of the statutes which warrants a judicial declaration of rights.
Therefore, the order here under review is reversed, and this cause is remanded with directions to the chancellor to require the appellees-defendants to respond to the complaint.
Reversed and remanded with directions.
