Gribbel v. Henderson

• Citation: 10 So.2d 734,151 Fla. 712
• Parties: GRIBBEL et al. v. HENDERSON et al. (two cases). JOHN GRIBBEL, Inc., v. SAME.
• Decision Date: 10 November 1942
• Court: Florida Supreme Court

10 So.2d 734

151 Fla. 712

GRIBBEL et al. v. HENDERSON et al. (two cases).

JOHN GRIBBEL, Inc., v. SAME.

Florida Supreme Court

November 10, 1942

Rehearing Denied Dec. 11, 1942. [Copyrighted Material Omitted]

Carl T. Hoffman, L. L. Robinson, and Sam C. Matthews all of Miami, and J. Lewis Hall, of Tallahassee, for petitioner.

Mabry Reaves, Carlton & White and Tillman & Henderson, all of Tampa, for respondents.

WHITFIELD, Justice.

There are three petitions for interlocutory certiorari under Rules 27, 28 and 34 to review orders of the Circuit Court in equity denying motions to quash the service of process by publication and service made upon a resident agent of nonresident ancillary executors under the statutes. The suit quasi in rem is brought by holders of preferred stock of the Tampa Gas Company, a Florida public utility corporation, to obtain an accounting to the Tampa Gas Company from the nonresident executor-trustees of the estate of John Gribbel, deceased, such estate having stated real and personal property which is within the jurisdiction of the court and controlled by the defendant nonresident executor-trustees.

As to the right to maintain a suit of this nature, see 18 C.J.S., Corporations, § 520, p. 1205 et seq.; 13 Fletcher; Cyc. Corp., § 5832 et seq.; Freeman v. Alderson, 119 U.S. 185, 7 S.Ct. 165, 30 L.Ed. 373; Reybine v. Kruse, 128 Fla. 278, 174 So. 720; 50 C.J. 505; Reed v. Reed, 121 Ohio St. 188, 165 N.E. 684, 64 A.L.R. 1384, text page 1390; 42 Am.Jur. p. 62; 31 Am.Jur. p. 98, § 444; Geary v. Geary, 272 N.Y. 390, 6 N.E.2d 67, 108 A.L.R. 1293; Southern Pacific Co. v. Bogert, 250 U.S. 483, 39 S.Ct. 533, 63 L.Ed. 1099; 13 Am.Jur. 475 et seq.; Mills Dev. Corp. v. Shipp & Head, Inc., 126 Fla. 490, 171 So. 533; Mills v. Shipp & Head, Inc., 126 Fla. 495, 171 So. 535; Taylor v. Standard Gas Co., 306 U.S. 307, 618, 59 S.Ct. 543, 83 L.Ed. 669; Orlando Orange Groves Co. v. Hale, 107 Fla. 304, 144 So. 674; News-Journal Corp. v. Gore, 147 Fla. 217, 2 So.2d 741.

John Gribbel was a resident of Pennsylvania. He died testate in 1936, a widower. His estate includes real and personal property in Hillsborough county, Florida, where this suit was brought. There are five executor-trustees of his estate. Four are nonresidents of Florida; one is a corporation under the laws of Pennsylvania.

Four of the defendants in this suit are the children and heirs of John Gribbel, deceased. They are residents of Pennsylvania and are executors of the will of John Gribbel, deceased, and trustees of his estate and also director-trustees of 'John Gribbel, Incorporated', a dissolved Florida corporation, made a defendant. Such four John Gribbel's estate in Florida and have a duly appointed resident agent in Hillsborough county, Florida, on whom service borough county, Florida, on whom service of process against the four may be served under the statutes of Florida. Service of process in this suit was made in Hillsborough County, Florida, on the resident statutory agent for the four nonresident ancillary executors, which service is binding on such executors under section 83 of the Probate Act of 1933 Acts 1933 c. 16103. Service of process in this suit on the same four individual nonresidents as director-trustees of 'John Gribbel, Incorporated', a dissolved Florida corporation, was made by publication under section 4 of Chapter 20452, Acts of 1941. Thomas A. Bracken, Jr., is a resident of Pennsylvania, and Trust Officer of the Real Estate Trust Company of Philadelphia, a Pennsylvania corporation, which Real Estate Trust Company is one of the executor-trustees of the estate of John Gribbel, deceased. Thomas A. Bracken, Jr., is also the fifth director-trustee of the dissolved Florida corporation. Service on him as such director-trustee was made by publication, under section 4 of Chapter 20452. Service of process was also made on the dissolved Florida corporation by publication under section 5 of Chapter 20452. Whether service on the dissolved Florida corporation by name is necessary when service is duly made on the nonresident director-trustees of such dissolved Florida corporation, need not be determined here. The statutes necessarily contemplate that service of process may be upon the director-trustees of a dissolved Florida corporation if there are any when the affairs of the dissolved corporation are to be litigated.

The names and addresses of the five nonresident director-trustees of 'John Gribbel Incorporated', a dissolved Florida corporation, appear in the sworn statement for service of process by publication.

The bill of complaint as amended alleges 'that this is a suit for an accounting to be made by the Estate of John Gribbel to the Tampa Gas Company for the recovery of moneys by the Tampa Gas Company against the estate of John Gribbel'; and in effect alleges that plaintiffs are minority holders of preferred stock of the Tampa Gas Company, a Florida corporation, a public utility company rendering service in Tampa, Florida; that prior to his death, John Gribbel, a citizen of Pennsylvania, was president of, and controlling owner of the stock of, the Tampa Gas Company; that stated invalid transactions of the corporation through its officers and directors resulted in great gain to John Gribbel in his lifetime, and corresponding loss and injury to the Tampa Gas Company and to plaintiffs and others; that upon the death of John Gribbel in 1936, his will, which was probated in Pennsylvania, bequeathed his stock and interests in said Tampa Gas Company and other property in trust for stated purposes to the named five executor-trustees under the will, four of them being his adult children and heirs at law, all citizens of Pennsylvania, and the Real Trust Company of Philadelphia, the fifth executor-trustee, being a corporation of Pennsylvania; that the four individual nonresident executor-trustees have qualified in Hillsborough County, Florida, under the statute as ancillary executors of the estate of John Gribbel, deceased, and they then as required by the statute duly appointed an adult citizen at Tampa, in Hillsborough County, Florida, as their resident agent on whom service of process could be made under the statute; that the executor-trustees are so conducting the affairs of the Tampa Gas Company that it would be futile to try to get redress through the defendant Tampa Gas Company, a Florida corporation or the defendants who rae its controlling non-resident stockholders, directors or officers: 'that said The Real Estate Trust Company of Philadelphia has and exercises only such powers as have been conferred upon it by the said John Gribbel, or his personal representatives since his death, and that said stock is held to use and vote solely for the benefit of said estate, and according to the will and wish of those controlling said estate.

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"(c) That a full and complete accounting be required of the heirs and personal representatives of the estate of the said John Gribbel both of the acts and transactions of John Gribbel, deceased, as an officer of The Tampa Gas Company, and of the acts, conduct and doings of his personal representatives controlling said company since his death, and that an accounting be had not only of the specific transactions mentioned and complained of in the bill as originally filed but of the additional transactions mentioned and complained of in this amendment and of such transactions as may be discovered and revealed hereafter.

"(e) That, upon final hearing in this cause, the plaintiffs pray for the same relief as against Idella Gribbel McCurdy, Elizabeth Gribbel Corkran, Wakeman Griffin Gribbel, John Bancker Gribbel, and Thomas A. Bracken, Jr., as Trustees of John Gribbel, Incorporated, that is heretofore prayed against the estate of John Gribbel.'

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'* * * that said executors and trustees are residents of the State of Pennsylvania and have resided in said State at all times since the death of John Gribbel, except that one of them spent a great deal of time in Europe up to the time of the present World War, but that plaintiffs are advised that he did not change his place of permanent abode; that said executors and trustees have at all times not only controlled the corporation through their common stock ownership, but have placed and retained themselves, or their husbands on the Borad of Directors so as at all times to constitute a large majority or the entire membership of said Board, and have thus retained the direct and immediate control of said company * * *.'

Relief against the estate of John Gribbel, deceased, is definitely prayed for in the bill of complaint as originally filed and in amendments thereto.

The above recitals may be sufficient to show the bill of complaint is a proper basis for the issue and service of process by publication or otherwise as may be authorized by law upon the defendants, there being res within the jurisdiction of the court. Other matters are for future consideration.

Nonresident defendants filed special appearances and motions to quash the service by publication on the dissolved corporation and on the nonresident director-trustees and individually on four executor-trustees of the estate of John Gribbel, deceased, by service on their resident agent. The court denied the motions to quash and interlocutory certiorari was applied for.

This suit is quasi in rem.

'* * * the term 'in rem' is applied to actions between parties where the direct object is to reach and dispose of property owned by them, or of some interest therein. In the class of actions known as quasi proceedings in rem, the judgment deals with the status, ownership, or liability of particular property and operates only as between the particular parties to the proceedings. ...