Leposky v. Berger

• Decision Date: 11 March 1959
• Citation: 110 So.2d 13
• Parties: Irene F. LEPOSKY, as Acting Secretary of Jafra Steel Corporation, a Florida corporation, Appellant, v. Sam B. BERGER, Appellee.
• Court: Florida Supreme Court

Page 13

110 So.2d 13

Irene F. LEPOSKY, as Acting Secretary of Jafra Steel Corporation, a Florida corporation, Appellant, v. Sam B. BERGER, Appellee.

Supreme Court of Florida.

March 11, 1959.

Rehearing Denied April 16, 1959.

John M. Murrell, John M. Murrell, Jr., and J. M. Flowers, Miami, for appellant.

Joseph Pardo, Miami, for appellee.

DREW, Justice.

This is an interlocutory appeal from an order of the Circuit Court for Dade County entered in the above styled cause on October 14, 1958.

The original proceeding was instituted against appellant, or her predecessor in corporate office, for a writ of mandamus to require her to transfer certain stock to appellee pursuant to a sheriff's bill of sale. The material facts are outlined in an earlier opinion of this Court remanding the cause for entry of a peremptory writ in appellee's favor. ¹ Jurisdiction in the instant appeal is assumed under the doctrine of Armenian Hotel Owners, Inc. v. Kulhanjian, Fla., 96 So.2d 896.

After issuance of the peremptory writ pursuant to our mandate a rule to show cause was issued against appellant, but was on August 8, 1958, discharged, with the finding that she had in fact complied with the order of the court that the corporate records be made to show the appellee as owner of the stock in question as of April 4, 1955. On September 26, 1958, the appellee filed a 'Motion to Compel Compliance with Florida Statutes' containing a prayer for entry of an order against the corporation for which appellant serves as secretary to require said corporation to issue new stock certificates in appellee's name as provided in F.S. Section 614.15, F.S.A. ² The order now appealed was entered after hearing upon this motion, and in unequivocal terms it required the corporation and 'its officers, directors and agents' to issue to appellee '3450 shares of capital stock * * * nunc pro tunc as of April 4, 1955.'

The latter order must, for at least two reasons, be vacated. The cited statute provides ample authority for such action in a proper proceeding, but it is obvious from even a casual examination of the record and history in the instant case that this relief was never within the scope of the issues made by the petition for writ of mandamus; that neither the corporate entity nor the officers against whom this order purports to be directed were made parties defendant; and, further, that the proceeding had in any event finally and absolutely terminated by the full perforomance of the mandate of this Court. The established rule is that no further...