Kelly v. Knott

• Decision Date: 04 August 1934
• Parties: KELLY, Commissioner of Banking and Insurance v. KNOTT, State Treasurer, et al.
• Court: Florida Supreme Court

157 So. 22

116 Fla. 362

KELLY, Commissioner of Banking and Insurance v. KNOTT, State Treasurer, et al.

Florida Supreme Court, Division B.

August 4, 1934

Rehearing Denied Nov. 3, 1934.

Petition by William H. Kelly, Commissioner of Banking and Insurance of the State of New Jersey, against W. V. Knott, as State Treasurer and ex officio Insurance Commissioner of the State of Florida, and another. From an unsatisfactory order petitioner appeals.

Affirmed. Appeal from Circuit Court, Leon County; J. B Johnson, Judge.

COUNSEL

Herbert U. Feibelman and Louis M. Jepeway, both of Miami, and William C. Hodges, of Tallahassee, for appellant.

Stanley C. Myers, of Miami, and Waller & Pepper, of Tallahassee, for appellees.

OPINION

BUFORD Justice.

On December 19, 1932, William H. Kelly, commissioner of banking and insurance of the state of New Jersey, filed a bill of complaint in the circuit court of Leon county against W. V. Knott, as state treasurer and ex officio insurance commissioner of the state of Florida, and New Jersey Fidelity & Plate Glass Insurance Company, a corporation organized under the insurance laws of the state of New Jersey, in which it was alleged that New Jersey Fidelity & Plate Glass Insurance Company, which will hereinafter be called the New Jersey company, had qualified to do a surety business in the state of Florida and had deposited $75,000 in securities with the state treasurer under the statutes of this state relating to such required deposit by surety company; that the New Jersey company had become insolvent and that he, the complainant, had become the liquidator of that company. He alleged that the liabilities in Florida would exceed the assets of the company in this state, which assets were constituted entirely by the deposit of securities on file in the state treasurer's office and prayed that the court take jurisdiction of the case for the purpose of paying the Florida obligees who might become entitled to receive indemnity from the New Jersey company pro tanto, to the end that the fund might not be exhausted by the application of a few obligees, thereby leaving a great number of the obligees without pay.

The court assumed jurisdiction and made certain orders.

On May 16, 1933, the London Operating Company filed bill of complaint in the circuit court of the Second judicial circuit of Florida in and for Leon county, whereby it was alleged that it held a judgment against the New Jersey company, and prayed for the appointment of a receiver to take over the assets of the company in the hands of the state treasurer and distribute the same to the benefit of the creditors.

The latter bill was filed under provisions of chapter 16248, Acts 1933. Prior to the passage of that act the circuit court of Leon county was without jurisdiction to proceed in accordance with the provisions which were brought into being with the enactment of that statute. After the latter bill was filed the cases were consolidated and certain orders were made. Later, complainant Kelly and his attorney filed petitions for reimbursement and compensation to be paid from the fund in the hands of the receiver appointed by the court. On those petitions the court made and entered the following order, to wit:

'This cause came on to be heard upon the petition of Herbert U. Feibelman for compensation and reimbursement upon the sworn petition of petitioner, affidavits of attorneys as to the reasonableness of the compensation prayed for and the records of the consolidated suits as entitled above, and same was argued by counsel for the respective parties, and the Court having considered the matter and being advised doth

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