Gamble v. Gamble Holding Corp.

• Decision Date: 01 July 1935
• Citation: 162 So. 886,120 Fla. 340
• Court: Florida Supreme Court
• Parties: GAMBLE v. GAMBLE HOLDING CORPORATION et al.

162 So. 886

120 Fla. 340

GAMBLE v. GAMBLE HOLDING CORPORATION et al.

Florida Supreme Court

July 1, 1935

Rehearing Denied Sept. 3, 1935.

En Banc.

Bill by Edward B. Gamble against the Gamble Holding Corporation and others. From a decree dismissing the bill, complainant appeals.

Affirmed. Appeal from Circuit Court, Duval County; George Couper Gibbs, judge.

COUNSEL

George M. Powell and John W. Dodge, both of Jacksonville, for appellant.

F. P Fleming, C. N. Lichliter, and Fleming, Hamilton, Diver &amp Lichliter, all of Jacksonville, for appellees.

OPINION

PER CURIAM.

The record in this cause discloses that in December, 1921, Robert Gamble conveyed to Edward B. Gamble, the appellant, three shares of the capital stock of Georgia Ice Company, and in January, 1923, the same vendor conveyed to the same vendee 1,250 shares of the capital stock of said company. The first conveyance as thus enumerated was evidenced by certificate 5 and the second conveyance by certificate 9. The reason for said conveyances will be further exemplified herein.

In January, 1927, the appellant, as complainant below, filed his bill of complaint against appellees as defendants in the circuit court of Duval county praying that said 1,253 shares of the capital stock of Georgia Ice Company be adjudicated to be his absolute property, and that certificates numbered 5 and 9 evidencing his ownership of said stock be immediately redeemed from any and all pledges to which they may have been subjected by defendants, and delivered to complainant or his solicitors of record. The bill further prayed that an accounting of all debits and credits be made to ascertain and determine what, if any dividends have been or should have been declared and paid to the complainant from the income incident to said shares of stock, that complainant's title to said shares of stock be decreed to be superior and paramount to that of defendants, and that defendants be forever enjoined from asserting any title or ownership in said stock or from interfering in any way with complainant in his full and free use thereof.

The bill of complaint was seasonably amended, answer on the part of the Georgia Ice Company was entered, a large volume of testimony was taken, and on final hearing the chancellor found that certificate No. 5, describing three shares of the capital stock of Georgia Ice Company, was apparently issued December 13, 1921, to the complainant by Robert Gamble, that the said stock was never sold or given to the complainant or ever in fact became his property, but that it was colorably transferred to him solely to qualify him to act as an officer of said defendant, Georgia Ice Company, during the time he was employed by it, and that said shares of stock were in truth and fact the property of Robert Gamble at that time and until they were by him transferred to the Gamble Holding Corporation just before his death.

As to certificate No. 9, the chancellor found that it was apparently issued by Robert Gamble January 2, 1923, to complainant for 1,250 shares of the capital stock of Georgia Ice Company, but that said stock was never sold or given to complainant or ever became his property, nor was it ever transferred to or accepted by complainant, that said shares of stock were colorably transferred to and colorably accepted by complainant solely by reason of an understanding and agreement between the said Robert Gamble and the said complainant in furtherance of a conspiracy combination, and design between them whereby said Robert Gamble sought to evade the payment of certain income taxes due by said Robert Gamble to the United States of America on account of dividends accruing to him, the said Robert Gamble, by virtue of said shares of stock, that said shares of stock were in truth and in fact the property of the said Robert Gamble at the time of said conveyance and until transferred by him to the Gamble Holding Corporation just prior to his death.

Pursuant to such finding the chancellor on May 11, 1931, entered his final decree finding the equities to be in favor of the defendants, that the complainant having failed to make a case was not entitled to the relief prayed for, and that his bill of complaint as amended was without equity and should be dismissed, which was done.

The final decree was appealed from. The appeal was dismissed without prejudice, and on May 26, 1932, more than one year later, the appellant as complainant below filed the instant suit by a bill in the nature of a bill of review naming different defendants, but praying that the final decree entered May 11, 1931, in the former suit be vacated and set aside and that said final decree be, upon hearing, modified and altered; that complainant be granted the relief originally prayed for in his bill as amended, both as to his title and ownership of the said 1,253 shares of stock of the Georgia Ice Company and as to an accounting for all dividends paid thereon to parties other than complainant.

A motion to dismiss the bill in the nature of a bill of review filed in the latter suit was granted, and the instant appeal was prosecuted from that decree. The sole error assigned is predicated on the decree dismissing the original and the amended bill of complaint in the lastnamed suit.

Much is incorporated in the briefs of counsel on the question of whether or not the latter bill of complaint was in fact a bill of review, a bill in the nature of a bill of review, or should be more appropriately labeled by some other name. (A bill of review is brought for the purpose of having a decree reviewed, corrected, or reversed. It must be brought within the time allowed for an appeal. A bill in the nature of a bill of review is to all intents and purposes a new suit involving the same subject matter. Its function is the same as that of a bill of review, but is not restricted by the time allowed for appeal and may be interdicted by laches. It is filed by consent of the court.) We will consume no time in a discussion of these academic questions at this time. We further pretermit any discussion of the question of whether or not the bill was seasonably filed, as we do other questions raised. The chancellor brushed all these matters aside and disposed of the case on the merits as revealed by the record, and from our impression of it he was warranted in doing so.

Stripped of its superfluities, the former bill of complaint filed in January, 1927, seeks to confirm the title of the complainant in and to 1,253 shares of capital stock of Georgia Ice Company. The relief prayed for in that bill was denied and the latter bill filed May 26, 1932, sought to set aside the final decree entered May 11, 1931, in the former suit on the theory that it was procured throught fraud; said fraud being predicated solely on the theory that complainant was, through the willful, malicious, and fraudulent concealment of defendants and their counsel, denied the advantage of Exhibit 1, attached to the latter bill of complaint; his contention being that Exhibit 1 constituted newly discovered evidence that would have produced a different decree if it had been known to the chancellor.

In fine, then, the sole question with which we are confronted is whether or not Exhibit 1 attached to the bill filed May 26, 1932, was fraudulently concealed from the complainant by defendants or their counsel in the former case, and if it was so concealed would it have changed the result if it had been in evidence.

Exhibit 1, which is alleged to have been concealed from complainant, was an affidavit made by A. M. Dixon, as attorney in fact for Robert Gamble. It certifies among other things that the transfer of the 1,253 shares of stock conveyed by Robert Gamble to complainant in January, 1923, was a bona fide sale, and is in striking contrast to Dixon's testimony in the former suit as to the transfer. It is accompanied by Exhibit 2, being a copy of Robert Gamble's income tax return and is attached to the bill of complaint in the latter suit. It was on file in the United States Treasury during the litigation of both suits.

In his decree dismissing the latter bill of complaint, the chancellor found that Exhibit 1 would not have changed his decree and conclusions as to the original suit if it had been present and introduced in evidence, that it was not shown that any application was made to the Treasury Department for copy of said exhibit, that said exhibit could have been secured in the original suit by due diligence, that the latter bill failed to carry sufficient allegation of fraud in the suppression of Exhibit 1, that no sufficient ground was shown in the latter bill for relitigating the cause, and that the latter bill failed to show facts to prove that the newly discovered evidence (Exhibit 1) was true, and that the oral testimony of Dixon given in the original suit, which contradicted Exhibit 1, was untrue.

We are in other words importuned to reverse the decree below because of an inconsistency in Exhibit 1 and Dixon's testimony given in the original suit. In the light of the record here we do not think this should be done. The evidence as a whole discloses that the three shares of stock described in certificate 5 were colorably transferred to complainant by Robert Gamble to qualify him (complainant) to act as an officer in Georgia Ice Company, and that the 1,250 shares of stock described in certificate 9 were colorably transferred to and accepted by complainant solely by reason of an agreement between complainant and Robert Gamble in furtherance of a conspiracy to evade certain income taxes due by Robert Gamble to the United States of America on account of dividends accruing to him on said shares of stock. It is further shown that said stock was the...