Carr v. Carlisle

• Decision Date: 18 February 1941
• Citation: 200 So. 529,146 Fla. 201
• Parties: CARR v. CARLISLE.
• Court: Florida Supreme Court

200 So. 529

146 Fla. 201

CARR v. CARLISLE.

Florida Supreme Court, Division A.

February 18, 1941

Suit by Clarence E. Carr, trustee for Charles H. Carr, against Frank P. Carlisle, wherein Charles H. Carr filed a petition to intervene and be substituted as plaintiff. From unsatisfactory orders of the circuit court, plaintiff appeals.

Affirmed. Appeal from Circuit Court, Clay County; Bayard B. Shields, judge.

COUNSEL

Jennings & Coffee, of Jacksonville, for appellant.

Katz &amp Katz, of Jacksonville, for appellee.

OPINION

BUFORD Justice.

Clarence E. Carr, Trustee for Charles H. Carr, filed bill of complaint in theCircuit Court of Duval County, Florida, against Frank P. Carlisle.

The bill alleged that plaintiff had in his possession certain money placed in his hands by Charles H. Carr for the purpose of investment; that between April 20th and 25th, 1939, the plaintiff entered into an agreement to purchase certain lands described from Federal Land Bank of Columbia; that plaintiff made a down payment to Federal Land Bank of Columbia on a total purchase price of $3300 on one farm from funds and money placed in his possession by Charles H. Carr and that he made a payment of $650 on a total purchase price of $5,000 on the other farm with money placed in his hands by Charles H Carr for investment purposes. That for convenience plaintiff had contract to purchase the second farm, and receipt of the down payment, made in the name of plaintiff's brother-in-law defendant Frank P. Carlisle. That between April 20, 1939, and January 18, 1940, the plaintiff with other funds placed in his hands by Charles H. Carr furnished and equipped the farms and farm houses with all the various farming instruments and implements necessary for efficient operation of said farms; that on or about April 25, 1939, plaintiff engaged his brother-in-law defendant, Frank P. Carlisle, to operate the farms and that the defendant was to have no interest in the farms or other items, but was working for salary. That defendant had sold and was selling off produce on the farms without permission of the plaintiff and is keeping the proceeds and refuses to make an accounting therefor. That the defendant is an irresponsible person and the plaintiff believes and fears that defendant will sell the crops along with other farm produce, to the great loss of the plaintiff.

That bill was filed on January 24, 1940. On February 8, 1940 Charles H. Carr filed petition to intervene. In the petition Charles H. Carr denied that the funds referred to in the bill of complaint were placed in the hands of Clarence E. Carr for investment purposes and alleged that the same were entrusted by petitioner to Clarence E. Carr for safekeeping and that the investment of the funds was without the knowledge or consent of Charles H. Carr. And that such investment was contrary to the wish and desire of the petitioner and in violation of the trust; that he has often made demand upon Clarence E. Carr for the return of the money but said Clarence E. Carr has refused to return the same and withholds the same and withholds all property, real and personal, purchased with said funds; that on January 29, 1940, petitioner served on Clarence E. Carr a Revocation revoking any and all trust and any powers of attorney which petitioner gave or might have given theretofore to the said Clarence E. Carr. That petitioner is the real party at interest as plaintiff in this cause and that it is detrimental to his interest to permit Clarence E. Carr to continue this suit in his behalf and that it is against his wish and desire to have Clarence E. Carr as Trustee, or otherwise, to act for him in this action or otherwise and that petitioner desires to be substituted as plaintiff in this cause in lieu of Clarence E. Carr, Trustee for Charles H. Carr, without prejudice to the proceedings had herein and that this action proceed accordingly.

Thereafter, on February 13, Clarence E. Carr filed an amended bill of complaint in which he did not describe himself as Trustee and from which he eliminated all reference to having received or having possession of the money invested from Charles H. Carr. Otherwise, this bill of complaint was to all intents and purposes the same as the original bill of complaint.

On February 24, 1940, defendant Frank P. Carlisle moved to dismiss the amended bill of complaint and also filed motion to vacate order appointing Receiver. On the same day the court entered its order striking the amended bill of complaint, set aside the injunction issued against the defendant on the 24th day of February, 1940, denied motion to vacate the order appointing the receiver and denied motion to dismiss the bill of complaint.

The court also, on February 22nd, entered an order denying petition to substitute Charles H. Carr as plaintiff in lieu of Clarence E. Carr, Trustee for Charles H. Carr, and the other relief prayed by Charles H. Carr by decree as follows:

'It is Ordered, Adjudged and Decreed as follows:

'1. That said petition be and it is hereby denied without prejudice to any of the rights of Charles H. Carr herein and without prejudice to any of his rights or right to any relief prayed for by him in that certain case now pending in the Circuit Court, Fourth Judicial Circuit, Duval County, Florida, wherein he, the said Charles H.

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