Evans v. Green

• Decision Date: 01 August 1939
• Citation: 195 So. 413,142 Fla. 335
• Parties: EVANS v. GREEN et al.
• Court: Florida Supreme Court

195 So. 413

142 Fla. 335

EVANS v. GREEN et al.

Florida Supreme Court

August 1, 1939

On Reinstatement of Cause April 9, 1940.

En Banc.

Suit by Dorothy Evans, a widow, against Carl Green and others for appointment of a receiver. From orders vacating the appointment of a receiver reappointing another as receiver and vacating an order diverting funds of the receivership to the parties hereto, the plaintiff appeals.

Affirmed with directions.

On Reinstatement of the Cause.

Appeal from Circuit Court, Dade County; Arthur Gomez, Judge.

COUNSEL

Murrell & Malone and E. F. P. Brigham, all of Miami, for appellant.

Sibley Giblin & Schroeder, of Miami, for appellees.

OPINION

PER CURIAM.

Dorothy Evans, the appellant, and Carl Green, the appellee, were sole owners of the stock in Patrician Hotel Company. A controversy arose between them as to status of the physical property, and on bill of complaint filed by Dorothy Evans, Lewis Hall was appointed receiver for the Patrician Hotel Company to preserve the assets for the benefit of all its creditors. Hall later resigned as receiver, his resignation was accepted and Ernest Roberts was appointed in his stead. On the following day the court vacated the order accepting the resignation of Hall and appointing Roberts as receiver and on the same date another judge reappointed Hall to continue as receiver under like instructions as before. An order was also made on stipulation of counsel, diverting certain funds arising from the receivership to the parties hereto. Said order was vacated.

This appeal was prosecuted from the order vacating the appointment of Roberts as receiver, from the order reappointing Hall as receiver and from the order vacating the order diverting funds of the receivership to the parties hereto. On stipulation of the parties without bond, supersedeas of the orders appealed from was secured. A confession of errors was then filed by appellee in this court on which an opinion was entered to the effect that if the confession of errors was endorsed by appellants before June 1, 1939, the orders appealed from would be reversed.

The confession of errors so endorsed was filed in this court as directed, but no order of reversal or other order thereon has been entered. It develops that the receivers report shows the Patrician Hotel Company to have many creditors who are interested in the litigation and that none of them are parties to the cause but the mortgagor. Some of them have presented claims and been paid and others have asked leave to intervene and have been denied. Others have been given leave to sue the receiver.

It further appears from the record that the parties to the cause secured the appointment of the receiver and by stipulation induced the court through the receiver to divert funds from the receivers hands to the parties hereto, and the court later by order refusing to allow such diversion, they appeal from that order and now by filing confession of errors they propose to hold the lower court in error when no error is shown in the procedure taking the appeal.

It is well settled that parties to a cause may waive their own rights and confess their own errors and that any such waiver and confession will be given its legal effect, but we know of no authority for the parties confessing error of the court unless such error affects the status, duties or rights between the parties. When the latter situation develops, they may agree to the errors of the court for the purpose of fixing their rights inter sese.

In the case at bar, it appears that the errors confessed were those of the court committed in the exercise of its exclusive prerogative, to wit; the appointment of a receiver, and there is no showing that error was committed in doing so. A reversal of the order would have the...