
    George W. Trout, Appellant, v. R. B. Lilly, Appellee.
    200 So. 366
    Division A
    Opinion Filed February 14, 1941
    
      D. E. Knight, for Appellant;
    /. V. Walton, for Appellee,
   Buford, J.

Appeal brings for review decree dismissing bill of complaint.

The record shows bill of complaint, motion to dismiss, answer and counterclaim, order allowing reply to counterclaim and reply to counterclaim.

The decree from which appeal is taken is as follows:

“This cause duly coming on to be heard upon defendant’s motion to dismiss incorporated in the answer of the defendant and called up prior to the taking of any testimony herein, by consent of counsel, and counsel for the respective parties having argued the same, thereupon, upon consideration thereof, it is ordered and decreed by the Court that said motion to dismiss be and the same is hereby granted with leave to amend, and plaintiff by his counsel having elected not to amend said bill of complaint, it is ordered that said bill of complaint be and stand dismissed, at the cost of plaintiff. Plaintiff’s exceptions noted.”

Our conclusion is that the bill of complaint contains equity and that the pleadings present issues which may only be determined by consideration of pertinent evidence. Therefore, the decree is reversed and the cause remanded for further proceedings.

So ordered.

Reversed.

Brown, C. J., Whitfield and Adams, J. J., concur.  