Manning v. Clark

Decision Date11 December 1951
PartiesMANNING v. CLARK et al.
CourtFlorida Supreme Court

Harold M. Wilson, Miami, and Genet & Genet, Miami Beach, for appellant.

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

PER CURIAM.

A bill in equity was filed for an accounting, injunction, receivership and other relief by appellees against appellant. The bill prays, among other things, that upon final hearing, the court would decree that the joint adventure between the appellees and the appellant is dissolved and terminated; that the court will direct the appellant to account unto the appellees for the proceeds derived from the operation of the joint adventure and for the profits thereof.

Pursuant to the prayers in the bill, a restraining order was entered, and the court appointed a Receiver for the property of appellant. The appellant, in his answer, admitted that the relationship was that of joint adventurers, announced his willingness to report, and set forth that the business venture was operated at a loss. A Master in Chancery was appointed to take testimony and hear the accounting. In the meantime, the receivership was discharged, as was the injunction. Thereupon, a firm of certified public accountants was appointed to audit the accounting had before the Special Master. Among other things, the Special Master found that: Appellees had failed to prove any profits resulted from the operation of the enterprise and that there were no profits to be distributed; that appellees advanced to the appellant a total of $4,700.00; and he found further 'that the nature of the relationship between plaintiffs and defendant was one of creditor and debtor rather than one of joint adventurer.' The court approved and adopted the Master's report in toto. There was awarded to the Master a fee of $1,250.00, to the Receiver a fee of $750.00, to the firm of certified public accountants a fee of $335.00, and to the court reporter a fee of $123.00; all of these fees taxed wholly against the appellant. The court decreed that appellees do have and recover of and from the appellant the sum of $4,700.00.

In disposing of this case we must first consider the procedure that was followed by the lower court in entering a decree to accounting. From the facts as stated above, it will be observed that the cause was referred to the Master to take the evidence and report the same together with his conclusions of fact on all the issues before the question as to whether or not the appellant was required to account was determined. This is not the proper procedure. No doubt, the court was misled by the pleadings and the allegations therein. It is well settled that in suits for an accounting, where the answer does not admit the allegations of the complaint and there is no consent to entry of a decree, the proper practice is for the court to determine the initial question of plaintiff's right to an accounting, and an accounting may then be decreed if the finding is in favor of plaintiff upon the preliminary issue. Warde v. Richardson, 203 Okl. 474, 223 P.2d 338; Ewalt v. Hudson, Mo.App., 223 S.W.2d 132; Larson v. Crescent Planing Mill Co., Mo.App., 218 S.W.2d 814; Jackson v. Elmont Cemetery, Sup., 80 N.Y. S.2d 407; Harris v. Young, 215 Ill.App. 319, 131 N.E. 670; 1 Am.Jur. 306; 1 C.J. S., Accounting, § 40, p. 680.

Secondly, we must consider the averments which conferred jurisdiction in equity and the proof thereof. In brief, the appellees rely on the theory that the relationship between the parties was that of joint adventurers and sought an accounting from the appellant. This was the sole theory upon which the appellees could invoke the aid of a court of equity. In view of the fact that this might enable the appellant to have the appellees share in the losses that occurred from the operation of the undertaking, the appellant admitted and attempted to prove that such a relationship existed between them. It is well known that parties to a suit cannot come within the jurisdiction of a court of equity by merely making allegations that would satisfy the test of equity jurisdiction. It is also a well recognized proposition of law that to justify retention of a cause in equity the equitable jurisdiction must likewise be proven. Jansik v....

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23 cases
  • City of Miami v. Keton
    • United States
    • Florida Supreme Court
    • November 4, 1959
    ...Fla.App.1958, 101 So.2d 397; Holton & Co. v. Hull, 1939, 140 Fla. 687, 192 So. 229, 3 A.L.R.2d 1321 and 1377 note; Manning v. Clark, Fla.1951, 56 So.2d 521; Charles Sales Corp. v. Rovenger, Fla.1956, 88 So.2d 551, and Gladman v. Hallam, Fla.App.1958, 104 So.2d 46. We think the chancellor pr......
  • Boyd v. Walker, 70--822
    • United States
    • Florida District Court of Appeals
    • June 22, 1971
    ...two stages; first as to the basis or a need for accounting, and, if the plaintiff prevails thereon, then for the accounting. Manning v. Clark, Fla.1951, 56 So.2d 521; Charles Sales Corp. v. Rovenger, Fla.1956, 88 So.2d 551; Gladman v. Hallam, Fla.App.1958, 104 So.2d 46; Cooper v. Fulton, Fl......
  • Parliament Ins. Co. v. Hanson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 28, 1982
    ...for accounting, there are two issues: whether there is the right to an accounting, and the amount due under the accounting. Manning v. Clark, 56 So.2d 521 (Fla.1951); Charles Sales Corp. v. Rovenger, 88 So.2d 551 (Fla.1956); Wood v. Brackett, 266 So.2d 398 (1 D.C.A.1972). Under Florida law,......
  • Anderson v. City of North Miami
    • United States
    • Florida Supreme Court
    • December 20, 1957
    ...this attack. Appellants contest the allowance of a master's fee of $1,750 in this case, claiming that it was excessive under Manning v. Clark, Fla., 56 So.2d 521. Since the Manning case was decided, however, present F.S. § 62.071, F.S.A., was enacted, allowing compensation to a master in ch......
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