Opinion
December 4, 1951. Rehearing Denied December 20, 1951.
Appeal from the Circuit Court for Bay County, Ira A. Hutchison, J.
Thomas Sale, Panama City, for appellants.
Davenport Johnston, Panama City, for appellee.
Appellee as plaintiff sued appellants as defendants to recover for building materials furnished in the construction of a residence. A bill of particulars was attached to the amended bill of complaint to which defendant filed pleas, claiming credits aggregating several thousand dollars. Other pleas were tendered setting up an agreement for joint venture whereby defendant was to furnish materials and plaintiff was to do the work and divide profits. It was also alleged that no accounting had been had.
Defendant then moved to transfer the cause to the equity docket on the ground that the matters in controversy were involved and difficult and were proper for an accounting in equity. The motion to transfer was denied and all other pleas were stricken. A trial on the sole plea of "never was indebted" resulted in a verdict and judgment for the plaintiff in the sum of $3364.57. Motion for an accounting and to transfer the cause to the equity side of the docket was again made and denied. Motion for new trial was denied and defendants appealed.
The point for determination is whether or not in a law action defendants set up pleas for affirmative relief by way of accounting and counterclaim for any sum found to be due, should the court order the law action transferred to the equity side of the docket?
At the outset our attention is directed to the fact that this suit was brought prior to January 1, 1950, and was tried under the old rules. Under Section 63.75, Florida Statutes 1941, F.S.A., Equity Rule 75, 31 F.S.A. when suit is brought in a court of equity, if later found that it should have been brought at law the chancellor could require that it be transferred to the law side of the docket. The suit at bar was brought in law and we find no authority for a law court to transfer a cause to the equity side of the docket. Since the new rules are silent on this point and courts of law are limited in procedural matters by rule or statute, we are driven to the conclusion that there was no authority to transfer this cause to the equity docket.
Sections 52.20, 52.21 and 52.22, Florida Statutes 1941, F.S.A. provide that a defendant in a law action, when confronted with a strictly equitable defense, may tender it by way of a plea on equitable grounds. Such pleas have been repeatedly recognized by this court. Pensacola Lumber Co. v. Sutherland-Innes Co., 50 Fla. 244, 39 So. 789; Realty Bond Share Co. v. Englar, 104 Fla. 329, 143 So. 152; Harper v. Bronson, 104 Fla. 75, 139 So. 203; Bond v. Hewitt, 111 Fla. 180, 149 So. 606; Roth v. Bowman, 103 Fla. 923, 138 So. 774; Pepple v. Rogers, 104 Fla. 462, 140 So. 205; Crompton v. Kirkland, 157 Fla. 89, 24 So.2d 902. If defendants' equitable defense is such that he cannot set it up in law action or is such that it cannot be litigated in a law court, he may bring his bill in equity and enjoin the law action pending disposition of the cause in equity. See Sections 52.22, 62.01, 64.02, Florida Statutes 1941 F.S.A. dealing with the question.
Appellant has much to say about the refusal of the trial court to permit the introduction of his plea of payment and the support of it by certain canceled checks which were proffered in evidence. Even if the denial of this plea was error we are convinced that it was not harmful because it appears that when defendant proffered the canceled checks the trial court agreed to permit any of them introduced on showing that they were used in payment of the items on which plaintiff's suit was predicated.
For the reasons so stated the defendant has not shown reversible error so the judgment appealed from must be and is hereby affirmed.
Affirmed.
SEBRING, C.J., and CHAPMAN and THOMAS, JJ., concur.