Ruperd v. Hunter

The opinion of the district court of appeal may possibly be taken as holding that a judgment for plaintiff may be sustained upon findings adverse to the defendant upon affirmative allegations of the answer, although the cause of action to which such allegations and findings are responsive is not one set up in the complaint. If this is the construction to be put on the opinion, we are not willing to concur without further consideration. But, in fact, this question is not involved. The complaint as amended is in reality one for money *Page 100 had and received. The answer admitted the receipt of the money and set up affirmative matters in defense, and to these last-mentioned matters the findings are responsive. The judgment upon these findings is, therefore, a judgment upon a cause of action set forth in the complaint and not upon one which appears for the first time in the answer. A hearing in this court is, therefore, denied.

Olney, J., Shaw, J., Melvin, J., Lawlor, J., Wilbur, J., and Lennon, J., concurred.

Angellotti, C. J., concurred in the order denying a hearing in the supreme court.