Continental Nat. Bldg. & Loan Ass'n v. Scott

• Decision Date: 25 July 1899
• Citation: 41 Fla. 421,26 So. 726
• Court: Florida Supreme Court
• Parties: CONTINENTAL NAT. BUILDING & LOAN ASS'N et al. v. SCOTT.

26 So. 726

41 Fla. 421

CONTINENTAL NAT. BUILDING & LOAN ASS'N et al. v. SCOTT.

Florida Supreme Court

July 25, 1899

Appeal from circuit court, Alachua county; William A. Hocker, Judge.

Bill by D. A. Miller and others against the Continental National Building & Loan Association and others. From an order appointing G. S. Scott receiver the loan association and others appealed, and pending the appeal procured a rule on the receiver to show cause why he should not be proceeded against for contempt. Discharged without prejudice.

Syllabus by the Court

SYLLABUS

1. When an appeal is taken from an interlocutory decree in chancery and an order is made by the circuit judge, under subdivision 2, s 1458, Rev. St., that such appeal shall operate as a supersedeas of the decree appealed from, the power of such circuit judge over such supersedeas becomes functus officio. He cannot vacate or disturb it, but any application for its discharge or vacation must be addressed to the appellate court, whose process it is; and likewise any breach or violation of it must be dealt with by the appellate court and not by the circuit judge.

2. The well-settled rule is that it is no justification to a proceeding, as for a contempt, for the breach of an injunction or supersedeas order, that the breach was committed under the advice of counsel.

3. Where an interlocutory decree in chancery appointing a receiver is appealed from, and such appeal is ordered to be a supersedeas of such decree, the power of the circuit judge in the premises over the receiver and the properties in his hands under such decree is suspended by such supersedeas and, until the appellate court has acted in the case, he has no authority to make any further order relative to the properties in the receiver's hands under the decree superseded; and no order by the circuit judge while such supersedeas is in force will excuse the receiver for a violation of such supersedeas.

4. When an appeal is taken from an interlocutory decree appointing a receiver, and such appeal ordered to be a supersedeas of such decree, such supersedeas does not have the effect of discharging the receiver, but simply suspends his authority as such pending the supersedeas. Such supersedeas suspends the decree appointing him as receiver, and makes it his duty at once to cease all action as receiver, and to restore the properties that have come to his hands as such to the possession of the party from whose custody they were taken by the decree superseded.

COUNSEL

Horatio Davis and James B. Whitfield, for appellants.

R. L. Anderson, for appellee.

OPINION

TAYLOR C.J.

On the 14th day of December, 1896, D. A. Miller, F. P. Gaffney, H. C. Groves, and Alexander McIntyre filed their bill in equity in the circuit court of Alachua county against the appellants, alleging, among other things, that Miller, Gaffney, and Groves were holders of common stock of the Continental National Building & Loan Association, that was a corporation organized under the laws of Florida, having its principal office at Gainesville, Fla., and that McIntyre was the holder of 20 shares of the installment stock of the Florida National Building & Loan Association; that G. W. Hyde was president of said corporation; that James M. Graham was vice president and treasurer thereof, and C. M. Ackerman secretary thereof; that the defendant the First National Bank of Gainesville is a corporation, of which the defendant Graham is president and the defendant G. W. Hyde is vice president; that the Florida National Building & Loan Association is a corporation organized under the laws of Florida, having its place of business at Gainesville, Fla., of which the defendant Hyde is president, the defendant Ackerman vice president and director, and the defendant Graham is treasurer and director; that the Fernandina Building & Loan Association is also a Florida corporation, of which said Hyde is also president, Ackerman vice president, and Graham treasurer; that the Continental National Building & Loan Association purchased all the property, assets, and securities of the two corporations, the said Florida National Building & Loan Association and the Fernandina Building & Loan Association, assuming all of their liabilities, since which time the two last-named corporations have ceased to do business. The bill then charges divers acts of mismanagement of the business of said Continental National Building & Loan Association, misappropriations of its funds, assets, and property by the defendants Graham, Hyde, and Ackerman, and generally that the said parties are conducting the business affairs of said corporation illegally, and squandering its property and assets. The bill prays, among other things, for an injunction and receiver to take charge of the property and assets of said corporation. Upon the filing of the bill, temporary injunction was granted as prayed.

Drucilla Agnew, Sarah M. Agnew, and R. T. Gardner, on petition, were made parties complainant to the bill. After answers filed by all the defendants, and upon testimony taken before a master the circuit judge, on the 31st day of July, 1897, made an order appointing G. S. Scott receiver, with power to take possession of all the books, records, assets, and property of every nature whatsoever belonging to the Florida National Building & Loan Association on the 29th day of October, 1895, or acquired by it since, togethed with all moneys, or the equivalent, paid in to the Continental National Building & Loan Association for or on account of any stock, mortgages, or claims so illegally transferred, or a sufficient amount to meet the joint demands of the parties complainant in this suit, or who shall become parties within 60 days. On the 16th day of November, 1897, defendants entered their appeal from said order to the January, 1898, term of this court, and on the 17th day of November, 1897, the circuit judge made the following order of supersedeas: 'On motion of appellants, by their solicitor, it is adjudged, ordered, and decreed that the appeal taken from the interlocutory decree entered in this cause on the 31st day of July, A. D. 1897, in vacation, do operate as a supersedeas and stay of proceedings to the said interlocutory decree upon the appellants filing a bond, payable to the appellees in said cause, with any surety company authorized to do business in this state as surety thereon, in the sum of $8,000, conditioned to well and truly perform said interlocutory decree, and to pay all costs and damages that may be awarded said appellees if said decree be affirmed, in whole or in part, or the appeal be dismissed.' On the 2d day of December, 1897, the appellants filed the bond, in compliance with said order of supersedeas, payable to D. A. Miller, F. P. Gaffney, H. C. Groves, Alex. McIntyre, Sarah Agnew, Drucilla Agnew, and R. T. Gardner, in the sum of $8,000, conditioned as required by said supersedeas order, with the Fidelity & Deposit Company of Maryland, a corporation, as surety. On the 14th day of December, 1897, as appears by affidavit of F. L. Williams and G. W. Hyde, the latter, as president of the Florida National Building & Loan Association, notified the said G. S. Scott, receiver, of the appeal taken in said cause, and of the supersedeas order, and of the filing of the required supersedeas bond, and demanded of him a redelivery to him, as such president, of the books, papers, and assets of every kind belonging to said association that had been turned over to the said Scott as such receiver under the order appointing him as such. And on the 14th day of September, 1898, upon motion of the appellants, supported by the affidavit of G. W. Hyde to the effect that, after such demand, the said G. S. Scott, receiver, had failed to deliver the books, assets, and property in his hands as such receiver, this court issued a rule upon the said G. S. Scott, commanding him to show cause, if any he could, before this, the supreme court, on Tuesday, the 27th day of September, A. D. 1898, why he should not be held and adjudged to be in contempt of this, the supreme court, for his alleged violation of the said supersedeas in failing and refusing, after such supersedeas took effect, to deliver up to G. W. Hyde, president of said Florida National Building & Loan Association, the books, papers, and assets of every kind belonging thereto that had come to his hands, or into his custody and control, by virtue of the decree appealed from and so superseded. On September 23, 1898, the respondent, Scott, filed his answer to said rule, in which he admits the rendition of the decree appealed from, and the appeal therefrom. He also admits the rendition of the order of supersedeas upon condition that the appellants file a bond as stated above. He also admits that on the 14th day of December, 1897, G. W. Hyde, as president of the Florida National Building & Loan Association, made a written demand upon him for redelivery to him, the said Hyde, as such president, of the books, papers, and assets of every kind belonging to said association. The respondent, further answering, says: It is not true that said appellants did file a supersedeas bond in the sum of $8,000, conditioned as required by the said order of the Honorable W. A. Hocker, judge of said circuit court, but, on the contrary, the said bond so filed by said appellants was not so conditioned, as will be shown hereafter in this respondent's answer; that the only demand which has ever been made upon him for redelivery of the said property and assets was made by one G. W. Hyde, as president of the Florida National Building & Loan Association...