Esch v. Forster

• Decision Date: 20 January 1936
• Citation: 168 So. 229,123 Fla. 905
• Parties: ESCH et al. v. FORSTER et al.
• Court: Florida Supreme Court

168 So. 229

123 Fla. 905

ESCH et al. v. FORSTER et al.

Florida Supreme Court, Division A.

January 20, 1936

On Rehearing April 23, 1936.

Further Rehearing Denied May 22, 1936.

Suit by J. P. Esch and others against Davis Forster and others. From an unsatisfactory decree, plaintiffs appeal.

See also, 113 Fla. 377, 152 So. 444.

Affirmed.

On Rehearing. Appeal from Circuit Court, Volusia County; M. B. Smith, judge.

COUNSEL

Stewart & Stewart, of De Land, for appellants.

Green &amp West, of Daytona Beach, Fullerton & Gillespie, of New Smyrna and Hull, Landis & Whitehair, of De Land, for appellees.

OPINION

PER CURIAM.

In a suit brought by J. P. Esch and others in their own right and in behalf of all other taxpayers within a stated taxing district to require an accounting for the proceeds received from taxes collected and not lawfully used, the chancellor decreed in favor of the complainants and ordered specified payments to be made for attorney fees and other expenses allowed by the court, and ordered that remaining funds be paid 'into the registry of the court for the purpose of distribution thereof * * * in accordance with further instructions to be rendered * * * by this court.' It was 'further ordered, adjudged and decreed that it (the court) shall and will retain jurisdiction over this cause and every phase thereof until such time as there shall have been effected a complete distribution of the trust fund involved herein.' Complainants appealed.

Upon a consideration of the entire record, it is not made to appear that substantial error exists in the decree; and as the court expressly retained jurisdiction of the cause for further orders to be made therein in making a complete disposition of the funds in litigation, which enables the court to make any appropriate and proper order in the cause, the decree as appealed from is affirmed, without prejudice to the authority of the chancellor to make any and all proper orders in the cause according to law and equitable procedure.

It is so ordered.

WHITFIELD, C.J., and BROWN and DAVIS, JJ., concur.

ELLIS, P.J., and TERRELL and BUFORD, JJ., concur in the opinion and judgment.

On Rehearing.

SEBRING Circuit Judge.

After an opinion and judgment was filed in this case on January 20, 1936, a rehearing was granted. Pursuant thereto, the court has carefully reconsidered the briefs and record herein, and now renders its opinion thereon.

This is a class suit brought by J. P. Esch, and others, in their own right and in behalf of all other taxpayers within a special taxing district to require an accounting and a return of taxes alleged to have been illegally collected by certain of the defendants acting as administrative officers under color of defective or unconstitutional legislative enactments which attempt to create said special taxing district. The suit also seeks an accounting against other of the defendants who are alleged to have illegally received compensation for services rendered to said administrative officers. See Sp.Acts, 1925, c. 10448; Acts 1925, Ex.Sess., c. 11791; Acts 1929, Ex.Sess., c. 14503; Acts 1931, cc. 14769, 14770, 14771. See also, Stewart v. Daytona & New Smyrna Inlet Dist., 94 Fla. 859, 114 So. 545; Stewart v. New Smyrna Inlet District, 100 Fla. 1126, 130 So. 575.

The theory upon which the different bills of complaint rest, the relief sought, and the defenses interposed by the several answers are sufficiently set out and discussed in Esch et al. v. Forster et al., 99 Fla. 717, 127 So. 336; New Smyrna Inlet District et al. v. Esch et al., 103 Fla. 24, 137 So. 1, rehearing denied 103 Fla. 31, 138 So. 49; Forster et al. v. Esch et al., 113 Fla. 377, 152 So. 444.

Upon final hearing, Hon. M. B. Smith, as specially designated chancellor to hear said case in the place of the resident judge of the Seventh judicial circuit, decreed in favor of the plaintiffs, ordered certain specified payments to be made for attorney's fees and other expenses allowed by the court, and ordered that remaining funds in the hands of the defendants (received) be paid into the registry of the court 'for the purpose of distribution thereof * * * in accordance with further instructions to be rendered at that time by this court.' The court also retained jurisdiction of the case, and every phase thereof, 'until such time as there shall have been effected a complete distribution of the trust fund involved herein.'

From this decree, the plaintiffs take their appeal.

It appears from the record that the decree appealed from was based 'upon the entire record * * * including the testimony and evidence taken and heard by the court and the stipulation made and entered therein in open court on July 16th, 1934.' By said stipulation, as read into the record by one of the solicitors for plaintiffs at the time of said hearing, and copied into the decree appealed from, it was agreed 'that in order that the case may be speedily concluded and a distribution of the fund involved in this suit may be had, the complainants abandon and disclaim any claim, demand, or right to refund to any monies or disbursements made or paid to any party to this case by any parties to this case, as shown by the audit of W. O. Gentry, etc., dated September 29th, 1932, or otherwise; that the solicitors for the respective parties are entitled to and shall receive a reasonable attorneys' fee for their services, to be determined by the court, together with their expenses, all of which shall be paid immediately out of funds now in the hands of the receiver; that the defendants, Fullerton and Gillespie, shall receive a reasonable fee for the services rendered by them to New Smyrna Inlet District in all matters and things handled by them as attorneys for said District, to be fixed by the court; that all other costs and expenses * * * be paid from the fund now in the receiver's hands; and that after the payment of all said items, the remaining funds in the hands of the receiver be returned and disbursed to the complainants and other tax payers pursuant to the order of this court.' It was further stipulated that as a basis for the disbursement of the remainder of said fund to the taxpayers, the court shall consider certain sworn statements filed in the case by the tax collector and the clerk of the circuit court, showing taxes collected and from whom collected; and the audit of W. O. Gentry heretofore referred to.

It is first contended for appellants that judge M. B. Smith had no authority to enter a decree in this case for the reason that at the time said case was heard and determined by him, another circuit judge, who had been duly assigned to Volusia county to assist the resident judge in disposing of pending cases, was hearing and disposing of such cases as were being presented to him for determination; and that consequently there was no authority vested in the Governor to assign another judge to said county to determine this particular case.

We fail to see how these facts, if true, can affect the authority of Judge Smith to act in the present case. But even if there were any merit in the assignment (a question which we do not determine on this appeal), this assignment may not be considered here, as it is predicated upon a statement of facts about which the record is silent. Assignments of error based upon an alleged statement of facts are without merit when there is nothing in the...