Manning v. Clark

• Citation: 62 So.2d 352
• Court: Florida Supreme Court
• Decision Date: 19 December 1952
• Parties: MANNING et al. v. CLARK et al.

Page 352

62 So.2d 352

MANNING et al. v. CLARK et al.

Supreme Court of Florida, Special Division B.

Dec. 19, 1952.

Rehearing Denied Jan. 20, 1953.

Anderson & Nadeau and Harold M. Wilson, Miami, for appellant.

Daniel Sepler and Boyce F. Ezell, Jr., Miami, for appellees.

DREW, Justice.

This is the second appearance of this case in this Court. See Manning v. Clark, 56 So.2d 521. After consideration of the original appeal, we reversed the lower court 'with direction to the lower court to enter an order transferring the cause to the law side of the court and for further proceeding in accordance with law.' On rehearing granted in that case, we further directed the lower court to calculate the Special Master's fee theretofore awarded in the sum of $1,250 under the statute and our previous adjudications on this point, and further observed that there should be a liberal downward scaling of the Receiver's fee theretofore awarded in the sum of $750. The Accountant's fee was approved. The concluding paragraph of the opinion on rehearing provided that the foregoing costs be assessed equally against the plaintiff and defendants below.

The mandate in the former appeal was filed in the lower court on February 21, 1952. On March 24, 1952, the lower court entered an order transferring the said cause 'from the equity docket to the law docket', the pertinent portions of which are as follows:

'1. That this Cause be and it is hereby transferred to the law docket of this Court.

'2. That the bond heretofore filed with the Clerk of this Court in the sum of Ten Thousand Dollars ($10,000) be and it is hereby ordered in full force and effect and subject to the further order of this Court as to the interests of the Plaintiffs therein.

'3. That all pleadings, motions, orders, reports, bonds, testimony and transcripts thereof, exhibits and any other instruments of every nature filed in the Chancery side of this Court be and they are hereby considered as filed in the Law side of this Court.'

On the same date, viz., March 24, 1952, the plaintiffs below filed a motion for summary judgment, the pertinent portions of which are as follows:

'1. That this Court has by its Order transferred to the law side of this Court the foregoing Cause and has by its Order directed that all of the pleadings, motions, orders, reports, bonds, testimony and transcripts thereof, exhibits and any other instruments of every nature be considered as filed in the law side of this Court.

'2. That heretofore by proper and appropriate proceedings in due conformance with the prior order and direction of this Court the issues presented by the pleadings were tried and the decision thereon reflected by the prior decree of this Court.

'3. The pleadings, testimony, exhibits and admissions on file show that there is no genuine issue as to any material fact and that the Plaintiffs are entitled to a Judgment as a matter of law and no further testimony need be taken nor can any further proceedings have any material bearing upon the issues thus determined.

'4. That the plaintiffs as a matter of law are entitled to a Judgment against the Defendant and his sureties in the sum of $4700 as principal and in the sum of $540.61 as interest from the 28th day of March, 1950 to the 28th day of February, 1952 and to interest from said date until the date of payment; that the Plaintiffs as a matter of law are entitled to have and recover from the Defendant and his sureties the costs necessarily expended by the Plaintiffs in the prosecution of their claim and demand against the Defendant or incurred by them or that they will be required to expend and the Plaintiffs hereby advise the Court that the Plaintiffs are required to expend the sum of...