
    BURLEY v. AMERICAN FINANCE CORPORATION OF FLORIDA.
    No. 66-C-8602.
    Circuit Court, Dade County.
    August 31, 1966.
    Loewenstein, Dunn & Johnson, Miami, for plaintiff.
    Robert E. Fensholt, Miami, for defendant.
   HENRY L. BALABAN, Circuit Judge.

This cause came on to be heard on the motion to dismiss of the defendant, American Finance Corporation of Florida, and the court having heard argument of counsel and being otherwise fully advised, finds —

It is evident from the record that there is pending in the small claims court a proceeding involving the same parties, same cause, and same issues, raised or inherent. Nevertheless, one of the litigants — the defendant in that suit — has seen fit to file in this court a complaint for a declaratory decree seeking affirmative relief, involving the same parties, same cause and same issues. Plaintiff asks this court to determine whether the loan transaction between the parties is usurious.

In a pending suit usury is an affirmative defense to be pleaded, Diversified Enterprises, Inc. v. West (Fla. App. 1962), 141 So.2d 27. The plaintiff in the case at bar — defendant in the said pending suit — has the right and opportunity to so plead in the pending suit, and if entitled to it will receive the same relief sought here. Under the facts of his case, declaratory relief does not lie. Taylor v. Cooper (Fla. 1952), 60 So.2d 534, reh. den.

This is not so say that in a proper case, in one where a proceeding is not already pending, affirmative relief is precluded.

It is accordingly ordered and adjudged that the motion to dismiss is granted, and that the complaint is dismissed, with prejudice.  