Opinion
September 22, 1950.
Appeal from the Circuit Court, Sumter County, T.G. Futch, J.
Garland W. Spencer, Sanford, for petitioners.
P.B. Howell and J.C. Getzen, Jr., Bushnell, for respondent.
July 28, 1950, respondent filed his sworn complaint in the Circuit Court, Fifth Circuit, wherein he prayed for and secured a temporary restraining order against petitioners without notice. August 1, 1950, petitioners filed their motion to dismiss and on August 5th, they filed their motion for more definite statement as authorized by Rule 33(b) and (e) New Equity Rules, 31 F.S.A. Copies of the motion to dismiss and for more definite statement were served on attorneys for respondent. August 8th petitioners gave notice to respondent that the motion to dismiss and the motion for more definite statement would be called for argument before the Court August 15th, 1950 at ten A.M.
On August 11th, petitioners notified respondent that if the Court should, on August 15th, deny their motion to dismiss and for more definite statement, they would file with the Court their sworn answer, copies of which they furnished respondent and would again ask for dissolution of the temporary restraining order. The motion to dismiss and for more definite statement came on to be heard at the time designated in the notice. Counsel for petitioners was present and offered to submit argument in support of said motion but the Court refused to hear him for the reason that he construed Rule 33 of the Equity Rules "to mean that said motions had to be presented to and argued before the Court within ten days after service of pleadings upon defendant." The motion to dismiss and for more definite statement, not having been called for argument within ten days, were accordingly denied.
Thereupon counsel for petitioners requested the Court to hear their motion to dissolve the temporary injunction based on failure of the complaint to state a cause of action. This request was granted and the motion was denied. Counsel for petitioners then tendered and offered to file their sworn answer as they had on August 10th notified counsel for respondent that they would do, at the same time serving copies of said answer on respondent's counsel, but the Court refused to permit the said answer to be filed, to hear argument thereon or to dissolve the temporary restraining order. We are confronted with an appeal by certiorari from the order of the chancellor denying the motion to dismiss, the motion for more definite statement and the motion to dissolve the temporary restraining order.
The first question presented charges error, (1) in the refusal of the chancellor to dissolve the temporary restraining order, based on deficiencies in the bill of complaint. (2) Refusal of the chancellor to hear the issues made by the complaint and the answer and dissolve the temporary restraining order for failure to show or prove a cause of action.
We do not hold the chancellor in error for refusing to dissolve the temporary restraining order, because of deficiencies in the complaint, but we think he was clearly in error when he refused to permit the sworn answer to be filed and hear the motion to dissolve on the issues made by the complaint and the answer. The issues were before him, ample notice had been given respondent, the request to hear them was in compliance with law and the rules warranted such procedure. The sworn answer traversed the material allegations of the sworn complaint, and testimony was pertinent. A temporary restraining order without notice is summary in nature and the parties were entitled to a speedy determination of the issues raised. Sullivan v. Moreno, 19 Fla. 200, 221; Sections 64.05 and 64.06, F.S.A.
We are also of the view that the chancellor committed error in refusing to hear petitioners' motion to dismiss and the motion for more definite statement, because he construed Rule 33 of the Equity Rules "to mean that said motions had to be presented to and argued before the Court within ten days after service of pleadings upon defendant."
Florida Equity Rule 33(b) provides that motions to dismiss for failure to state a claim or defense upon which relief can be granted must be "filed by the pleader within 10 days after the service of the pleading upon him". (e) of the same Rule relating to motions for more definite statement, provides that "he may move within 10 days after the service of the pleading upon him for a more definite statement before interposing his response pleading."
From a reading of Rule 33(a) it is apparent that the interpretation imposed by the chancellor was in error. Unquestionably the motion to dismiss and the motion for more definite statement must be filed within ten days after service of pleading, but it does not have to be submitted to and ruled on by the chancellor within the ten days. Rule 33 (a), (1) and (2) provides for alteration of the time for filing responsive pleadings when a motion to dismiss is entered, but the hearing on such motions is governed by Rule 33(d) which requires that they be heard and determined before trial on application of any party, unless the Court orders that the hearing be deferred until the trial.
To promote sound and uniform practice we think the movant should set his motion for hearing before the Court on a day certain at the time it is filed, giving opposing counsel reasonable notice of the hearing not exceeding five days. At such hearing the Court may in his discretion adjudicate the motion or he may defer action on it till the trial. If the motion is overruled, responsive pleading will follow under Rule 33(a) or as the Court directs.
Certiorari is granted and the order appealed from is quashed with directions in compliance with this opinion.
CHAPMAN, ROBERTS, and HOBSON, JJ., concur.