The transcript shows that this case was begun in the Chancery Court on December 21, 1925. A subpoena in chancery was issued on that date and served on December 29, 1925, as to one defendant and an alias subpoena as to the other issued January 19, 1926. The defendants appeared in response to the process. All these proceedings were had within the three-year statute of limitation applicable to suits at law of the character involved in this record after the equity cause was transferred to the law side of the Court.
From December 21, 1925, to August 17, 1932, the cause pended in equity. From February or March, 1928, as the Chancellor recites, the cause rested "in the bosom of the court awaiting ruling and order upon defendants' demurrer * * * after argument thereof in February or March, 1928." On August 17, 1932, the demurrer of defendants was sustained to the equity bill but the cause transferred to the law side of the Court for further proceedings in accordance with Section 75 of Chapter 14658, Acts of 1931 *Page 258 (Florida Chancery Act), which authorizes such transfers as to causes that should have been brought as actions at law in the first instance.
On August 25, 1932, which was the earliest date at which a declaration at law could have been filed in this particular case, the declaration herein was filed setting up the specific legal cause of action that the original equity complainants now conceive that they should have begun at law on December 21, 1925, seven years earlier. The declaration now filed is as of August 25, 1932, but it is pursuant to the equity process that was issued and served upon the identical defendants in December, 1925. It is solely by virtue of the force and effect of such original process served in 1925 (plus the order of transfer from equity to law made under Section 75 of the Chancery Act) that the case is now within the competency of the court to proceed with at all as a case at law at this late date.
Under Section 4646 C.G.L., 2926 R.G.S., the plaintiff's action must be deemed as having been commenced, for the purposes of a proceeding at law, when the subpoena in Chancery was delivered in December, 1925, to the officer to be served. If that is not so, then there is no action yet commenced insofar as an action at law is concerned, because the only process that has ever been served or attempted in this case is that which was served in 1925 in connection with the chancery suit.
The case below was decided against the plaintiffs on the defendant's demurrer to plaintiffs' replication to pleas of the statute of limitation. Such pleas are pleas that had been filedto the first and only declaration at law that has ever been filedin this case after it was transferred to the law side of the court from the court of equity.
In my opinion the effect of the transfer of the case from *Page 259 the equity side to the law side of the court has the same effect as if the case had been originally begun at law at the time and upon the process first employed in the equity suit. This means that the case must be considered as having been commenced on December 21, 1925, by a summons placed in the hands of the officers for service and served at that time. See Section 4646 C.G.L., supra. The fact that no declaration in it as a proceeding at law was filed in this cause pursuant to the 1925 process until the 1932 transfer of the cause to the law side of the court, is no fault of the plaintiff, who had to wait until the 1932 date for the court to make his ruling disposing of his effort to get it heard upon the equity side of the same court.
A demurrer to any pleading at law searches the record and judgment thereon must be given for or against the demurrant as the record of the law case requires. This means that in order to decide whether or not the demurrer to plaintiff's replication to the pleas of the statute of limitations is well taken, we are permitted to search the record of the law side of the case only, thereby eliminating the equity side which has been completely disposed of and is therefore out of and beyond the scope of the record of the law case.
Thus proceeding, we find what is the equivalent of an ordinary suit at law originally begun by legal process, served in 1925, in which suit at law the first and only declaration at law was filed in 1932. Therefore now looking solely at the declaration and the process, to which we must confine our inspection in order to determine the sufficiency of the replication to the pleas of statute of limitations, it appears that the process in the present suit was placed in the hands of the officers for service in 1925, well within the statute of limitations, as provided for by Section 4646 C.G.L., supra, and that inasmuch as the declaration at law *Page 260 filed in 1932 is the sole and only legal (as distinguished from equitable) pleading that plaintiff has ever filed in an effort to state his cause as one at law, the declaration is simply a following up of the initial process, and cannot be affected one way or the other by what was alleged in the equity bill has now been eliminated.
The very purpose of Section 75 of the Chancery Act was to take care of situations like we have in this case wherein due to misapprehension as to the nature of a remedy being legal or equitable, a party is permitted to start in equity with the assurance that if he finds later that he should have started at law, he may do so under the same process that he has had served in the equity suit, and with like effect as if he had never filed any pleading at all.
What was alleged in the equity pleading is no part of the record at law for the purpose of testing the sufficiency of the law case pleadings. So there can be said to be no departure or variance between the declaration and the original bill in equity, since Section 75 of the Chancery Statute contemplates that fromand after the date of transfer of an equity cause to the law side of the court, the law side shall proceed from then on as if theoriginal process had been sued out and served at law in the first instance, without reference to the equity attempt.
I think the judgment should be reversed and the cause remanded with directions to overrule the demurrer to plaintiff's replication to defendant's pleas of the statute of limitations.
