O'Donoghue v. S. A. M. Corp.

PER CURIAM. Appellant, plaintiff below, filed his amended complaint against the appellees, defendants below, in a chancery suit. This appeal is from a final order of the chancellor dismissing, without prejudice, plaintiff’s amended complaint for failure to state a cause of action cognizable in equity. We find the chancellor was correct in his holding that the amended complaint failed to state a cause of action cognizable in equity. However, we find he was in error in dismissing the amended complaint instead of transferring the case to the law side of the court in accordance with rule 1.39, Florida Rules of Civil Procedure, 30 F.S.A. See Staiger v. Greb, Fla.App. 1957, 97 So.2d 494; Cook v. Central and Southern Florida Flood Control Dist., Fla. [629] App.1959, 114 So.2d 691; Rizzo v. Euclid Urbana Co., Fla.App.1960, 118 So.2d 553. Affirmed in part and reversed in part with directions that the suit be transferred for proceedings at law.