Opinion
February 19, 1943
An appeal from the Circuit Court for Volusia County, J.C.B. Koonce, Judge.
D.C. Hull and Erskine W. Landis and Hull, Landis Whitehair, for appellant.
J. Lewis Hall, M.G. Rowe and Walter C. Hardesty, Jr., for appellees.
We have before us for review a judgment of ouster entered on information in quo warranto and answer thereto.
The information was filed by the attorney general on relation of fifteen corelators to oust the respondent city from exercising control over a relatively small area of the City.
The substance of the answer was to deny the material allegations of the information and also alleged facts as an affirmative defense.
The only question is, was the answer sufficient to require the taking of testimony?
This Court is committed to the rule that judgment on the pleadings will not be given for relator when the answer alleges facts presenting an issue necessitating a trial. Watson v. Phipps, 99 Fla. 568, 126 So. 778; City of Auburndale v. State, 148 Fla. 671, 5 So.2d 241. It was therefore error to enter judgment on the pleading in this case and the judgment is reversed.
BUFORD, C. J., TERRELL, BROWN and THOMAS, JJ., concur.
CHAPMAN, J., dissents.
SEBRING, J., not participating.