Rorick v. Chancey

• Citation: 195 So. 418,142 Fla. 290
• Court: United States State Supreme Court of Florida
• Decision Date: 26 October 1938
• Parties: RORICK et al. v. CHANCEY.

195 So. 418

142 Fla. 290

RORICK et al. v. CHANCEY.

Florida Supreme Court

October 26, 1938

On Rehearing June 2, 1939.

Rehearing Denied April 23, 1940.

On rehearing.

Former opinion vacated, and order appealed from reversed.

For former opinion, see 130 Fla. 442, 178 So. 112.

WHITFIELD J., dissenting; CHAPMAN, J., dissenting in part.

On Second Petition for Rehearing. Appeal from Circuit Court, Broward County George W. Tedder, judge.

COUNSEL

Alex Baker, Mitchell D. Price, Charles W. Zaring and Robert S. Florence, all of Miami, for appellants.

C. A. Hiaasen and J. T. Chancey, both of Fort Lauderdale, for appellee.

OPINION

PER CURIAM.

After argument on the rehearing granted in this case, Mr. Chief Justice ELLIS, Mr. Justice WHITFIELD and Mr. Justice CHAPMAN are of the opinion that the judgment of affirmance entered by this Court in this cause on December 22, 1937, should be adhered to, while Mr. Justice TERRELL, Mr. Justice BROWN and Mr. Justice BUFORD are of the opinion that the said former holding of the Court should be receded from and the decree of the Circuit Court reversed. When members of the Supreme Court, sitting six members in a body and after full consultation, are permanently and equally divided in opinion as to whether the judgment of the Supreme Court should be adhered to on rehearing and the previous judgment of the Supreme Court should not be disturbed; therefore, it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the decree of the Circuit Court in this cause be and the same is hereby affirmed.

ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, and CHAPMAN, JJ., concur.

BUFORD, J., concurs specially.

CONCURRING

BUFORD, Justice (concurring specially).

I agree to the foregoing order but with the reservation that I think the Court should dispose of no case by a three to three order when a change in the personnel of the Court is in immediate prospect and that the parties to the cause should be permitted to present the case after such change in the Court shall have occurred.

DISSENTING

DISSENTING

WHITFIELD, Presiding Justice.

In Michigan Central Railway Co. v. Mix, 278 U.S. 492, 49 S.Ct. 207, 73 L.Ed. 470, the action was brought in a Missouri State Court for redress under a Federal law of an alleged wrongful death in interstate transportation. The judgment was reversed because the action, being brought in a State in which the defendant railroad company, a Michigan corporation, had no part of its railroad, was an unlawful burden to interstate commerce. The service of process was made in Missouri on an agent of the railroad company in Missouri who only solicited interstate transportation business, in Missouri for the Michigan railroad company, and the railroad company did not consent to be sued in Missouri in the case.

In that case the opinion states [page 209]:

'The contention that filing the petition for removal to the federal court was equivalent to the entry of a general appearance is obviously unsound. General Investment Co. v. Lake Shore Ry. Co., 260 U.S., 261, 268, 269, 43 S.Ct. 106 [110], 67 L.Ed. 244; Hassler v. Shaw, 271 U.S. 195, 46 S.Ct. 479, 70 L.Ed. 900. There is also a suggestion that the motion to quash the summons made by the railroad, in the state court after the remand, operated, under the Missouri practice, as a general appearance, York v. Texas, 137 U.S. 15, 11 S.Ct. 9, 34 L.Ed. 604; and that this precluded it from objecting to a trial of the cause within that state. We have no occasion to enquire into the local practice. The constitutional claim sustained in Davis v. Farmers' Co-operative Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996; was not that under the Fourteenth Amendment [U.S.C.A.Const.] as in Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372. It was assumed that the carrier had been found within the state The judgment was reversed on the ground that to compel it to try the cause there would burden interstate commerce and, hence, would violate the commerce clause. No local rule of practice can prevent the carrier from laying the appropriate foundation for the enforcement of its constitutional right by making a seasonable motion. Compare Sioux Remedy Co. v. Cope, 235 U.S. 197, 35 S.Ct. 57, 59 L.Ed. 193; Yazoo & Mississippi Valley R. R. Co. v. Mullins, 249 U.S. 531, 39 S.Ct. 368, 63 L.Ed. 754; Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13 [14], 68 L.Ed. 143.'

In other cases cited a Federal question was involved, or, if a Federal question was not involved, a Federal rule of procedure was followed, and not a State law, under the then controlling precedent of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, which was overruled in Erie Railway Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, decided by the United States Supreme Court, April 25, 1938, holding that State decisions as well as State statutes should be followed in the United States Court where the jurisdiction of such courts depends upon diversity of citizenship of the parties litigant. See, also, Floyd Hudson v. Moonier, 304 U.S. 397, 58 S.Ct. 954, 82 L.Ed. 1422, May 23, 1938. See Employers Reinsurance Corporation v. Bryant, 299 U.S. 374, 57 S.Ct. 273, 81 L.Ed. 289, the decision was as to procedure in a Federal District Court.

In this case a citizen of Florida sues in a State court citizens of another State together with Ohio corporations and Florida governmental corporations for an accounting and payment on a contract for professional services rendered in Florida.

The non-resident defendants include in their petition for removal of the cause to the United States District Court, an allegation that the joinder of certain named defendants in the cause in fraudulent and made for the purpose of hindering and embarrassing the Petitioners in the removal of this action to the United States District Court. This allegation goes to the right to remove the cause to the United States District Court and not to the service of process on the defendants.

The cause was remanded to the State court and the order of the State court sustaining objections to the motions of nonresident defendants to quash the service of State process on them was based upon a decision of this court which is controlling in State courts in the trial causes arising upon local contracts when no Federal laws have been violated.

The cause being remanded in the discretion of the United States District Court there can be no penalizing of the complaining defendants.

ELLIS, C.J., and CHAPMAN, J., concur.

BROWN Justice (dissenting).

After argument on the rehearing granted in this case, I am inclined to the view that the position taken by us in our original opinion in this case is erroneous, in that it would result in the establishment of a rule in this State which would penalize a party for applying for the removal of a cause pending in a court of this State to the Federal Court and would violate the rule of comity between State and Federal Courts. I still agree with the general statement made by Mr. Justice CHAPMAN in his opinion upon the original hearing, that it is within the power of a state court to determine what constitutes a general or special appearance in the courts of the State. However, I cannot concur in the further statement that this Court is committed to the ruling laid down in said original opinion by the decision in the case of State ex rel. Neel v. Love, 110 Fla. 91, 148 So. 208, upon the theory that the decision in that case committed this court to holding that the mere filing of a petition and bond for the removal of a cause to a federal Court constitutes in all cases a general appearance in the state court. It is true that the headnotes in the Neel Case indicate such holding, but in the extract from the opinion of Mr. Chief Justice Davis in that case quoted in the opinion of Mr. Justice Chapman, 178 So. 116, it will be noted that he stated that a defendant's appearance in a state court for the purpose of filing a petition and bond for removal of the pending cause to the federal court, is, 'in the event the petition for removal is denied because filed too late, an appearance in the state court for all purposes thereafter in so far as the state court is concerned.' (Italics supplied.)

In the case of State ex rel. Neel v. Love, supra, the petition for removal from the state court to the federal court was denied because the petition was filed after the time fixed by the statutes of the State of Florida for pleading and when the petitioning party was in default. In the case at bar the petition for removal was timely filed, on a special appearance for that sole purpose, when the petitioning parties were not in default. In the Neel Case, the cause was not removed to the federal court. In the instant case the petition for removal was granted, the cause was removed and was subsequently remanded to the state court by the District Judge.

The opinion in the case of State ex rel. Neel v. Love, supra, cited as authority Britton v. Beltzhoover, 147 Misc. 737, 113 So. 346. The facts in that case were closely akin to those in the case of State ex rel. Neel v. Love, supra. In a later case, McCoy v. Watson, 153 Miss. 416, 121 So. 116, the Supreme Court of Mississippi decided a case wherein the facts were almost if not quite identical with those in the case at bar, and distinguished that case from its former decision in Britton v. Beltzhoover, supra. In that case, McCoy v. Watson, supra, the Supreme Court of Mississippi had this to say [page 117]:

'We are therefore at the threshold confronted with the proposition whether an appearance in a state court for the sole purpose of taking the...