White v. Dyer

261 So. 2d 863 | Fla. Dist. Ct. App. | 1972

MANN, Judge.

There was a time when a defendant demurred at his peril,¹ but it is long past. In this case, for reasons inscrutable, an able lawyer filed, with his motion to dismiss the complaint, a motion for judgment on the pleadings, without filing an answer. The trial judge, taking as true all the complaint said, agreed that it was subject to dismissal for improper form but was sound in substance, and he entered judgment on the pleadings for the plaintiff. Fla.R.Civ.P. 1.140(c), 30 F.S.A. makes a motion for judgment on the pleadings appropriate “after the pleadings are closed.”² That time had not yet come, and the defendant should be allowed to plead after any amendment which may be required to perfect the plaintiff’s complaint.

Reversed and remanded.

LILES, Acting C. J., and McNULTY, J., concur.

1 . Shipman, Common Law Pleading, § 155 (3d ed. 1923).

2 . See 2 Kooman, Fla. Treatment, Fed. Civ.Prac. § 12-19 (1970).