Goldring v. Herskovitz

• Decision Date: 09 January 1937
• Parties: GOLDRING v. HERSKOVITZ et al.
• Court: Florida Supreme Court

172 So. 239

126 Fla. 804

GOLDRING v. HERSKOVITZ et al.

Florida Supreme Court, Division B.

January 9, 1937

Rehearing Denied Feb. 12, 1937.

Suit by Rachel Herskovitz, a married woman, by her next friend Sylvia Herskovitz and Sylvia Herskovitz, individually, against N Goldring. From an adverse order, the defendant appeals.

Affirmed. Appeal from Circuit Court, Escambia County; L L. Fabisinski, judge.

COUNSEL

Watson & Pasco & Brown, of Pensacola, for appellant.

Beggs &amp Beggs, of Pensacola, for appellees.

OPINION

BUFORD Justice.

In this case appellees filed suit for accounting against the appellant.

The appeal is from an order and decree denying defendant's motion to transfer the cause to the law side of the court for final disposition, which motion was made after pleadings were settled and testimony had been taken on depositions and before the chancellor.

The order appealed from is as follows:

'This cause coming on to be heard upon the motion of the defendant to transfer said cause to the law side of this court, and upon the application of the parties for a finding as to the prima facie sufficiency of the evidence introduced herein, and the court having considered the pleadings and testimony herein, and heard the argument of counsel, and having found that the evidence adduced by the complainant herein is prima facie sufficient to entitle the said complainants to a decree, and having found further that the said cause is cognizable in a court of equity, and the testimony sufficiently shows a case cognizable in a court of equity;

'It is ordered, adjudged and decreed:

'(1) That the said motion to transfer said cause to the law side of the Court be and the same is hereby denied, to which said ruling the defendant, by his attorneys then and there excepted.

'(2) That the evidence adduced herein by the complainants is sufficient to entitle the complainants to a decree in this cause to which said finding the said defendant excepted.'

The appellants have presented four questions in their brief, which are as follows:

'(1) Where the bill of complaint charges that various sums of money of an unknown total at various times between 1917 and 1929 had been deposited by the complainants with the defendant to be repaid to complainants on demand, and prays for an accounting and that the defendant be decreed to pay over the amount found due, and it develops from the testimony of the complainants that the amount claimed by them from defendant was definite and certain and known by them at the time of the filing of the bill, should the Court transfer the case to the law side of the Court?'

'(2) Where the only ground of equity jurisdiction is that an accounting is necessary to determine the amount due from the defendant to the complainants, and it appears after all the testimony of the complainants is in that there was no necessity for any accounting, and that the only issue to be tried is whether defendant should pay to complainants a definite liquidated balance or not, should the court on application of the defendant transfer the case to the law side of the Court under the provisions of the Chancery Act?'

'(3) After all the complainant's testimony is in and it is apparent to the Court that complete relief could have been had (assuming complainant's claim to be well founded) in an action at law for money had and received, should the Court under the provisions of section 75 of the Chancery Act [Acts 1931, c. 14658] order the case transferred to the law side of the Court?'

'(4) Where the bill of complaint and the evidence both show an unexcused delay of more than five years in bringing suit for an accounting for money had and received, is the complainant guilty of such laches as would deny him relief in a Court of equity?'

We hold that the disposition of this case is not to be controlled by answers to those questions.

The bill of complaint was sufficient to show, and the evidence adduced sufficient to prove, that the appellant, defendant in the court below, became the voluntary trustee of the complainants and held various sums of money delivered to him as such in trust for the complements; that such funds were delivered to him for safekeeping and to be returned to the complainants on demand; that he so received the funds but failed and refused to return same to the complainants on...