Auburn Automobile Co. v. Namor Corp.

• Decision Date: 28 August 1932
• Citation: 143 So. 604,106 Fla. 594
• Parties: AUBURN AUTOMOBILE CO. v. NAMOR CORPORATION et al.
• Court: Florida Supreme Court

143 So. 604

106 Fla. 594

AUBURN AUTOMOBILE CO. v. NAMOR CORPORATION et al.

Florida Supreme Court, Division B.

August 28, 1932

Suit by the Namor Corporation against the Habig Motors Company, in which the Auburn Automobile Company filed claim. From an adverse decree, the Auburn Automobile Company appeals. On motion to dismiss the appeal.

Motion denied. Appeal from Circuit Court, Dade County Jefferson B. Browne, judge.

COUNSEL

Miller McKay, Dixon & De Jarnette, of Miami, for appellant.

Burdine Terry & Fleming and Albert B. Bernstein, all of Miami Copeland & Therrel, of Miami Beach, Willard Utley, of West Palm Beach, John M. Murrell, Paul D. McGarry, Marshall F. Sanders, and Patterson & Knight, all of Miami, W. J. Dunn, of Miami Beach, and Clark & Ellis, of Miami, for appellees.

OPINION

PER CURIAM.

This was a class suit, brought by Namor Corporation, as complainant in the court below, not only for its own benefit but also for the benefit of all other creditors of the defendant, who might come in as parties. The defendant named in the bill was Habig Motors Company. The nature of the action brought was a statutory creditors' bill filed by a creditor which had first brought suit at law. See section 5035, C. G. L., section 3229, R. G. S. The relief prayed was that the rights of complainant and all other creditors of the defendant corporation be ascertained and decreed; that the court administer the funds and properties of the defendant by marshaling the assets of the corporation and applying same upon the claims of the various creditors as their interests might appear. A receiver was prayed for, appointed, and qualified. Numerous creditors filed claims, among them the appellant, Auburn Automobile Company, whose claim for a preference was disallowed. The final decree ordered 'that all creditors who have filed and prosecuted claims herein, and those who have objected to claims, pursuant to the order of reference and the order of re-reference, have been treated by the court and by all parties and creditors, as parties to this suit, and all such creditors are hereby declared parties hereto, the same as if they had formally intervened.'

From the final decree and certain orders made by the court, the Auburn Automobile Company, one of the creditors, took an appeal. The form in which the appeal was taken is in substance as follows:

'In the Circuit Court of the Eleventh Judicial Circuit in and for Dade County Florida. In Chancery. Cause No. 31747-C

'Namor Corporation, a Florida Corporation, Plaintiff, vs. Habig Motors Company, a Florida Corporation, Defendants

'Notice and Entry of Appeal

'Comes now Auburn Automobile Company by its undersigned solicitors, and takes and enters this appeal to the Supreme Court of Florida, from those certain orders made and entered (here describing them giving date and place of record) and makes said appeal returnable to the Supreme Court of Florida, on the 27th day of February, A. D. 1932; it being the intention of this entry and notice of appeal that Auburn Automobile Company shall be the appellant and that all other parties to this cause, whether plaintiffs, defendants, intervenors, claimants, receivers or creditors, shall be parties appellee.

'The Clerk will please record this entry and notice of appeal in Chancery Order Book forthwith.

'Dated at Miami, Dade County, Florida, this 30th day of November, A. D. 1931.

'[Signed] Miller, McKay, Dixon and De Jarnette

'By James Dixon,

'Solicitors for Auburn Automobile Company'

It is contended by certain of the creditors not specifically named in the above notice as appellees that the notice of appeal is insufficient to give this court jurisdiction over the persons of those not specifically named, and that, inasmuch as they have not appeared generally in the appellate court, the appellate court cannot proceed because each of them is an indispensable party to the appeal,--that each creditor whose claim was adjudicated by the orders and decrees appealed from has a 'vital and pecuniary interest in the decree,' and will be materially affected by any reversal or modification thereof by having the amount he will receive under the decree diminished, if appellant ...