Opinion
No. 69-174.
October 3, 1969. Rehearing Denied October 28, 1969.
Appeal from the Circuit Court for Martin County, Wallace Sample, J.
Carroll Dunscombe, Stuart, for appellant.
Robert J. Randolph, Stuart, for appellees.
This appeal is from an order dismissing plaintiff's petition with prejudice for lack of jurisdiction over the subject matter. We have examined plaintiff's petition in the light of the appellate presentment and find that plaintiff was improperly and solely seeking, in the guise of a creditor's bill, the probate of an estate in the circuit court. Fla. Const. art. V, § 6(3), F.S.A.; Fla. Const. art. V, § 7(3); F.S. 1967, Section 36.01, F.S.A.; F.S. 1967, Section 36.02, F.S.A.; F.S. 1967, Section 36.16 (1), F.S.A. and F.S. 1967, Section 732.01, F.S.A. Thus, the trial court decision was entirely correct.
Plaintiff also contends on appeal that it should have been permitted to amend to assert a creditor's bill. But there was not the slightest showing in the petition of matters within the jurisdiction of the circuit court and, because of this, we cannot say that the trial court was in error. Thus, while our affirmance shall stand as a bar to plaintiff's attempts to have the circuit court exercise the jurisdiction of the county judge's court, it is without prejudice to its right to file a new and independent action, if any it has, which may be properly cognizable in the circuit court.
Affirmed.
WALDEN, McCAIN and REED, JJ., concur.