Opinion
Opinion Filed February 14, 1936.
An appeal from the Circuit Court for Hillsborough County, Paul C. Albritton, Judge.
McKay, Macfarlane, Jackson Ramsey, for Appellant;
J. Tom Watson and Whitaker Brothers, for Appellee.
The appeal in this case is from an order containing four adjudications, as follows:
"1st. That defendant's plea in abatement incorporated in the answer be and the same is hereby denied.
"2nd. That defendant's motion to strike certain portions and paragraphs of the bill of complaint as set forth and incorporated in its answer, be and the same is hereby denied.
"3rd. Defendant's motion to dismiss the bill of complaint for want of equity be and the same is hereby denied.
"4th. That plaintiff's motion to strike Exhibit A to the bill of complaint herein and to dismiss the same be and the same is hereby denied."
At the time this appeal was entered there was pending an appeal from an order made in the Circuit Court for Pinellas County in a suit between the same parties involving the same subject matter. We have disposed of the appeal from Pinellas County Circuit Court, with direction that the cause as there pending be dismissed. See opinion filed February 1st, 1936.
This disposition necessarily changes the status of the matters involved in the cause pending in the Circuit Court of Hillsborough County now before us on appeal. We therefore, hold that in equity and good conscience this case should be remanded to the court below with directions that the order appealed from be vacated and that complainant be allowed to amend his bill of complaint as he shall deem advisable, serving copies thereof on opposing counsel, and that further pleadings and proceedings be had in accordance with law and the rules of practice.
That the costs of this appeal be prorated equally between the parties and that no recovery be had or taken on the supersedeas bond filed herein.
It is so ordered.
Remanded without prejudice.
ELLIS, P.J., and TERRELL and BUFORD, J.J., concur.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment.