Berger v. Leposky

Decision Date11 June 1958
PartiesSam B. BERGER, Appellant, v. Irene F. LEPOSKY, as Acting Secretary of Jafra Steel Corporation, a Floridacorporation, and J. W. Stewart, Appellees.
CourtFlorida Supreme Court

Eaton & Achor, Miami, for appellant.

J. Lewis Hall of Hall, Hartwell & Douglass, Tallahassee, and Charles M. Moon, Miami, for Irene F. Leposky.

John M. Murrell and John M. Murrell, Jr., Miami, for J. W. Stewart, for appellees.

DREW, Justice.

Much of the relevant factual matter involved in the instant case is set forth in a previous opinion of this Court disposing of related litigation between the parties. Berger v. Beyerle, Fla., 93 So.2d 67.

Briefly, the appellant Berger on April 4, 1955, purchased at a sheriff's sale 3450 shares of stock in Jafra Steel Corporation. The sale was made and bill of sale issued by the sheriff to appellant on the basis of a certificate by the corporate secretary that the 3450 shares in Jafra Steel Corporation were owned by and then registered on the books in the name of the judgment debtor, Donald W. Stewart, F.S. Sec. 55.31, F.S.A. Appellant thereafter presented the bill of sale and requested transfer of the stock, which was resisted on the ground that 2,500 shares of such stock, 'represented' by 25 shares in Jafra, Incorporated, were previously pledged by the judgment debtor to a third party, J. W. Stewart, appellee in the instant case, which pledge had been foreclosed on April 6, 1955. Appellant thereupon instituted a mandamus proceeding against the corporate secretary, and prior to initial disposition of that proceeding he filed a suit in equity for declaratory relief, against both the secretary and alleged pledgee J. W. Stewart, in connection with which the present appeal has been taken.

From an adverse decree entered in the mandamus proceeding on July 11, 1955, denying the writ as to the 2500 shares claimed to be subject to pledge, the appellant duly took his appeal to this Court. Upon review of the record and the issues presented, it was the considered opinion of this Court that the respondent corporate secretary had failed to show cause why a transfer should not be made as contemplated by F.S. Sec. 55.31, F.S.A. and the cause was accordingly reversed and remanded on January 23, 1957, for the entry of a peremptory writ in favor of appellant. The opinion on rehearing pointed out the provisions of F.S. Section 614.15, F.S.A., as bearing on the possibility of petitioner's obtaining the certificates in question by appropriate action or process, and contained the language that 'if performance under this section has been rendered impossible * * * our judgment is without prejudice to Berger to proceed against the responsible parties as he may be advised.' Any ambiguity raised thereby was eliminated in a subsequent unpublished order, on certiorari, dated June 7, 1957, as follows:

'That cause coming on for consideration on the Petition for Writ of Certiorari filed by petitioner, and it appearing that the Circuit Court for Dade County, after the going down of the Mandate, failed to issue Peremptory Writ as directed in the Mandate in this cause but entered a peremptory writ for less than the relief prayed for any granted by this Court, it is ordered that Writ of Certiorari be and is awarded herein and the final judgment entered and Peremptory Writ which issued in this cause in the Circuit Court of Dade County each bearing date April 4, 1957 be and they are severally quashed and said Court is directed to issue the Peremptory Writ prayed for in accordance with the Mandate of this Court without qualification.'

Prior to disposition of the appeal in mandamus, to which the appellee J. W. Stewart was not a party, the corollary suit for declaratory relief against both J. W. Stewart and the corporate secretary had terminated with the entry of a decree on September 6, 1955, adverse to appellant, from which he did not appeal. This decree adjudicated, as between all the parties, the issue of title to the 2500 shares of stock in Jafra Steel Corporation, and found that the appellant Berger failed to meet the burden of proof required to prevail over the appellee J. W. Stewart, who held the stock as pledgee. The master's report upon which the decree was predicated also contained the statement 'that plaintiff elected his remedy and had an adjudication of the matter which is appealable' in the above mentioned mandamus action. The decree, however, is not put upon this ground, but finds upon the merits that the appellee J. W. Stewart owned the stock in question by virtue of purchasing upon foreclosure of the pledge.

On April 4, 1957, after the declaratory decree became final by lapse of the appeal period, and after the mandate of this Court in favor of appellant in the mandamus appeal, the appellees, defendants in the equity suit, filed a petition in that proceeding for supplementary relief by way of injunction againat the appellant Berger's 'proceeding further' in the mandamus action. F.S. Sec. 87.07, F.S.A. The order entered thereon under date of May 3, 1957, from which the instant appeal has been taken, enjoined appellant in the quoted language and restrained the secretary, the appellee Leposky, from changing the records of Jafra Steel Corporation.

The above recited chronology of events makes plain the fact that at the time of the entry of the injunctive order under review the mandamus proceeding at which it was directed had already terminated finally and absolutely in the issuance of a mandate on appeal and lapse of time for rehearing. The injunction herein, and the underlying decree in aid of which it was granted, were first brought to the attention of this Court in a second, independent...

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29 cases
  • Lesperance v. Lesperance
    • United States
    • Florida District Court of Appeals
    • December 7, 1971
    ...v. White, 40 Fla. 297, 24 So. 160; Baskin v. Klemm,118 Fla. 657, 160 So. 509; Cone v. Cone, Fla.1953, 68 So.2d 886; Berger v. Leposky, Fla.1958, 103 So.2d 628; State ex rel. Stewart v. Circuit Court of the 11th Judicial Circuit in and for Dade County, Fla.1959, 116 So.2d 424; Deauville Real......
  • Wilcox v. Hotelerama Associates, Ltd.
    • United States
    • Florida District Court of Appeals
    • June 8, 1993
    ... ... O.P. Corp. v. Village of North Palm Beach, 302 So.2d 130 (Fla.1974); Berger v. Leposky, 103 So.2d 628 (Fla.1958); Milton v. Keith, 503 So.2d 1312 (Fla. 3d DCA 1987). A trial court does not have discretionary power to alter ... ...
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    • United States
    • Florida District Court of Appeals
    • January 7, 1960
    ...So. 699; State ex rel. Budd v. Williams, 152 Fla. 189, 11 So.2d 341; Eisenburg v. Cornblum, 156 Fla. 702, 24 So.2d 236; Berger v. Leposky, Fla.1958, 103 So.2d 628, 631. As early as 1897 in the case of Bloxham v. Florida Cent. & P. R. Co., supra (22 So. at page 705), the Supreme Court of Flo......
  • Savage v. Macy's East, Inc.
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    • Florida District Court of Appeals
    • August 26, 1998
    ... ... Mendelson, 341 So.2d 811, 814 (Fla. 2d DCA 1977). See generally O.P. Corp. v. Village of North Palm Beach, 302 So.2d 130 (Fla.1974); Berger v. Leposky, 103 So.2d 628 (Fla.1958). It is not insignificant that this case was presented to us as one which involved only the substantive issue of ... ...
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