Ebersbach Const. Co. v. Charles Ringling Co.

• Decision Date: 18 November 1930
• Citation: 131 So. 148,100 Fla. 1270
• Parties: EBERSBACH CONST. CO. v. CHARLES RINGLING CO. et al.
• Court: Florida Supreme Court

131 So. 148

100 Fla. 1270

EBERSBACH CONST. CO. v. CHARLES RINGLING CO. et al.

Florida Supreme Court, Division B.

November 18, 1930

Suit by Charles Ringling Company against the City of Sarasota and Ebersbach Construction Company, a copartnership composed of Charles Ebersbach and another. From orders granting city's petition for a rehearing and permitting Morningside, Inc., and another to intervene as taxpayers, the Ebersbach Construction Company appeals.

Reversed. Appeal from Circuit Court, Sarasota County Paul C. Albritton, judge.

COUNSEL

John H Carter, of Marianna, for appellants.

Harrison E. Barringer, John F. Burket and Francis C. Dart, all of Sarasota, for appellees.

OPINION

BUFORD J.

Charles Ringling Company, a corporation, filed a suit against the city of Sarasota and Ebersbach Construction Company, a copartnership, seeking to enjoin Ebersbach Construction Company from doing further improvement work on Lockwood avenue in the city of Sarasota under a contract made with that company by the city in January, 1926, and to enjoin the city from paying out certain bond money, the proceeds of an issue of bonds by the city, for the purpose of paying for the work, and further to set aside and have declared null and void the improvement assessment theretofore made by the city upon certain real estate of the complainant abutting on said avenue.

There was a final decree which came after final hearing upon the amended bill of complaint and the amendments thereto and the separate answer of the city of Sarasota and Ebersbach Construction Company, a copartnership composed of Charles Ebersbach and Theodore Ebersbach, and evidence taken before the chancellor.

The findings of the court were: (1) That the equities were in favor of the complainant as between it and the city of Sarasota in respect to the assessment of the property complained of and set the assessment aside; (2) the equities in favor of Ebersbach Construction Company as between it and the complainant, and dismissed the bill amended bill, and amendments thereto as to Ebersbach Construction Company; (3) the equities in favor of Ebersbach Construction Company as between it and the city, and dissolved an injunction previously granted restraining the city from paying out improvement bond moneys for work done, or to be done, on Lockwood avenue by Ebersbach Construction Company under its contract.

The city filed a petition for rehearing which was granted. Afterwards, parties strangers to the suit, Morningside, Inc., a corporation, and J. Paul Gaines, filed their petition for leave to intervene as taxpayers and citizens of the city of Sarasota. Appeal was taken from the order granting a rehearing and from the order allowing the named new parties to intervene. It appears to us that each order constituted error in so far as the same applied to Ebersbach Construction Company, the appellant here, for the reason that the findings of the chancellor as set forth in the final decree as to Ebersbach Construction Company were required by the pleadings and the proof, as the same was presented to the chancellor and no contrary findings could have been based upon the pleading and proof without error having been committed thereby.

It was not alleged that the validity of the contract was in any wise dependent on the validity of the assessment involved, nor that the validity of the assessment was dependent on the validity of the construction contract between the city and Ebersbach Construction Company.

The city by its answer had denied that the contract was invalid, and had denied that the work had been abandoned, and upon hearing the city proved these allegations of its answer.

The contract was made February 9, 1926.

Section 2 of chapter 13402, Special Acts of the Legislature of 1927, confirmed and validated all acts and proceedings of the city council of the city of Sarasota occurring between January 1, 1926, and the date on which this act became a law, which was May 11, 1927. The assessments were validated and approved in so far as it was competent for the Legislature to approve such matters by provisions of chapter 13403, Special Acts approved May 11, 1927.

In Barber Asphalt Paving Co. v. City of Harrisburg, 64 F. 283, the Circuit Court of Appeals say:

'Where a city having authority to pave its streets and pay therefor from its treasury, and supposing that it had authority also to assess the cost on abutting property and transfer the assessments in payment for the work, contracts with a person, who also supposed it had such authority in regard to assessments, to do such paving, and to pay him by assigning the assessments to him, the city, not having in fact any authority to make the assessments, will be liable on the contract for the work, though it is stipulated that the assessments shall be accepted in payment, and that the city shall not be otherwise liable under the contract, whether the assessments are collectible or not. [C. C.] 62 F. 565, reversed.'

In Hendry et al. v. Kellow et al., 94 Fla. 23, 114 So. 235, the court say:

'The Legislature may approve, validate, and confirm any irregular or illegal contracts of a municipality which it could have legalized in the first place.'

See, also, Jacksonville v. Basnett, 20 Fla. 525; Smith v. Longe, 20 Fla. 697; Parker v. Jacksonville, 37 Fla. 342, 20 So. 538; Cranor v. Volusia County Commissioners, 54 Fla. 526, 45 So. 455; Camp v. State, 71 Fla. 381, 72 So. 483; Charlotte Harbor & N. R. Co. v. Welles, 78 Fla. 227, 82 So. 770.

After the motion for rehearing was granted the court granted a petition of Morningside, Inc., and J. Paul Gaines for leave to intervene. It will be observed from the record that Morningside, Inc., and J. Paul Gaines were strangers to the suit up to that time, and there was no privity either claimed or shown to exist between those proposed interveners and the original complainant. They did not purport or petition to intervene for the purpose of presenting any defense to the action brought by the complainant, but proposed to intervene for the purpose of making out a case against the defendants on their own behalf.

The opinion in the case of Smith v. Elliott et al., 56 Fla. 849, 47 So. 387, sustains the proposition that intervention in equity suits by strangers to the record will not be allowed after final decree.

In 21 C.J. page 346, the author states the law in regard to intervention as applicable here to be as follows:

'An intervening party must be reckoned with in...