Davis v. Battle

• Decision Date: 28 November 1939
• Citation: 192 So. 607,140 Fla. 778
• Parties: DAVIS et al. v. BATTLE et al.
• Court: Florida Supreme Court

192 So. 607

140 Fla. 778

DAVIS et al. v. BATTLE et al.

Florida Supreme Court

November 28, 1939

Rehearing Denied Jan. 4, 1940.

En Banc.

Suit by Ben Battle and another, a copartnership doing business under the partnership name of Battle & Hicks, against Mary I. Davis and her husband, George W. Davis, to subject property to equitable lien. From the decree, the defendants appeal.

Reversed.

BROWN J., dissenting. Appeal from Circuit Court, Dade County; H. F. Atkinson, judge.

COUNSEL

Copeland & Therrel, of Miami Beach, for appellants.

Readfearn & Ferrell, of Miami, for appellees.

OPINION

THOMAS Justice.

As will be seen, this is the second chapter in the story of this litigation. A thorough discussion of the issues involved in the controversy appears in a decision of this Court Davis v. Battle, 132 Fla. 240, 182 So. 243, 117 A.L.R. 742, and on the record then presented to the court it was decided that the chancellor erred in entering a decree in behalf of the plaintiffs, this language having been used in the conclusion:

'The decree appealed from is reversed for further proceedings not inconsistent with this opinion.' 132 Fla. text page 252, 182 So. text page 248, 117 A.L.R. text page 748.

There is no need to elaborate on the circumstances reflected in the transcript at the time it was considered before, and in this secons appeal we will confine ourselves to the proceedings taken after the return of the mandate of the circuit court. Immediately it was filed, the defendants, appellants now, presented their motion for final decree and before ruling was made on it the plaintiffs, present appellees, sought permission to take further testimony on re-reference of the cause to the special master. The chancellor, having before him the two motions, entered a final decree specifically granting the former and denying the latter. Subsequently a rehearing was allowed, the final decree was set aside and the cause sent to the master for the purpose of taking additional evidence.

We find no irregularity in the action of the chancellor in allowing further testimony to be taken in view of the expression employed in the former decision and our ruling in Simpson v. Warren, 106 Fla. 688, 143 So. 602, 144 So. 324, as follows:

'Appeals here in equity cases are under our system but steps in the cause (Palm Beach Estates v. Croker [106 Fla. 617, 143 So. 792] decided at the present term, and cases cited therein), and when a final decree is reversed without directions to the court below to enter a particular decree or to dismiss the bill, the effect of the reversal is to remand the cause to the court below for further decree in accordance with, and not inconsistent with, the ruling of the Supreme Court, with leave to the nisi prius court to take such other and further proceedings in the cause as may be according to right and justice in arriving at another decree which will accord with the mandate of the appellate court in the premises.' 106 Fla. text page 691, 143 So. 602, 144 So. text page 324.

So we will proceed to consider the matter further on the merits as its status may be affected by the steps taken subsequent to the mandate. See, also, Hart's Ex'r v. Smith, 20 Fla. 58.

If we are to affirm the decree eventually entered in favor of the plaintiffs, we must find, in the supplementary report of the master, facts causing us to recede from the former decision that the plaintiffs could not prevail. This additional report discloses that plaintiff's theory was that because the original contract provided for the sale of property to a prominent and successful pioneer developer, although his name does not appear as a party to it, the result,...