Smith v. Whitfield

• Decision Date: 01 August 1896
• Parties: SMITH v. WHITFIELD et al.
• Court: Florida Supreme Court

20 So. 1012

38 Fla. 211

SMITH v. WHITFIELD et al.

Florida Supreme Court

August 1, 1896

Appeal from circuit court, Marion county; W. A. Hocker, Judge.

Bill by William Smith against James H. Whitfield and James W Sanders. From an order dissolving injunctions granted complainant appeals. A rule was issued on behalf of the appellant against defendants to show cause why they should not be held in contempt for a violation of the supersedeas. Rule discharged.

Syllabus by the Court

SYLLABUS

1. An appeal from an order dissolving an injunction does not, of itself, reinstate the injunction; but an order directing the appeal to operate as a supersedeas, and a compliance with the terms of the order, do give it such effect.

2. While a supersedeas perfected on an appeal from an order dissolving an injunction has the effect to reinstate it, it does not retroact so as to deprive strangers to the litigation of intervening rights bona fide acquired.

3. Proceedings in contempt are criminal in their character.

4. S filed a bill against W. and S. to enjoin the removal of phosphate rock taken from the soil, and the injunction prayed for was granted December 26, 1895, but dissolved on the 3d of January following. An appeal was entered from the order dissolving the injunction on January 31st, and supersedeas perfected thereon February 3, 1896. On the 27th of January 1896, intervening the dissolution of the injunction and the appeal with supersedeas, W. & S. divested themselves of all interest in the rock, and delivered it into the actual possession of a third party, in no way connected with the litigation, and without actual knowledge thereof. Held not to be a contempt of the supersedeas for such third person to ship or dispose of the rock after the supersedeas was perfected, nor would it be a violation of the injunctions for persons to aid him in so doing.

COUNSEL W. S. Bullock and R. McConathy, for the rule nisi.

Anderson & Hocker, opposed. In October, 1895, Smith filed a bill in the circuit court for Marion county against Whitfield & Sanders, and therein alleged that in October, 1876, he made homestead entry upon the S.E. 1/4 of N.E. 1/4 and N.E. 1/4 of S.E. 1/4, section 12, township 15 S., range 19 E., in said county; that afterwards, in December, 1883, he relinquished his entry to Moses Simmons and James A. Curry, but the latter never perfected their homestead entries, and the same were canceled by proper authorities of the United States, in December, 1886, at which time complainant filed pre-emption declaratory statement for said land, and which statement was of record and uncanceled in the United States land office; that complainant continued to reside upon, cultivate, and improve the land as his homestead for a number of years thereafter, but, being ignorant and not advised as to his duty in the premises, he did not make proof under his pre-emption claim, but continued to reside on the land, as he had done for a number of years prior thereto; that thereafter, in 1887, a contest arose between complainant and the Florida Central & Peninsular Railroad Company as to the right to said land, the company claiming under a congressional act of June 22, 1874, and induced complainant to believe his homestead claim was forfeited, but he continued the contest, notwithstanding he had purchased from the company its title, or pretended title, to the land; that the contest through all the land departments, including the departments of the secretary of the interior, was decided in favor of complainant, and the land was awarded to him on the contest; that, pending the controversy, the complainant was not permitted to receive a receipt from the land office for his entry last made upon the land in 1881, but he was entitled thereto, and had continued his residence on the land the necessary period of time to invest him with a good title to the same, under the homestead laws of the United States; that fearing the result of the contest, and being desirous of preserving the improvements he had made upon said property, complainant purchased from the said railroad company whatever interest it had in and to the N.E. 1/4 of S.E. 1/4 of said section, township, and range, and thereafter made a temporary absence from the property, but before this time he had resided upon and made the necessary cultivation to entitle him to a patent to the land, and that he moved therefrom because of the delay incident to the final adjudication of the contest, but with no intention whatever of abandoning said land; that defendants, Whitfield & Sanders, took advantage of the pendency of the said contest suit and the temporary absence of complainant, and went upon the premises, and commenced digging and removing therefrom phosphate deposits thereon, and they undertake to justify under some pretended right, the exact nature of which was unknown to complainant, but without any validity whatever; that the portion of the land upon which defendants had trespassed was wild and unimproved, and its chief value was the phosphate rock deposited thereon, and, if this was taken away, the land would be of no value, or comparatively so; that defendants were actually engaged in mining and making large excavations in the earth, and removing the rock therefrom, thereby destroying the value of the property for any purpose, and were absolutely insolvent; that they had some rock then on the ground, the exact quantity not known to complainant, and were digging more daily, and carrying it off. It was also alleged that complainant, on the 31st day of December, 1890, presented an application to homestead the land, tendering at the time the necessary money, and alleging that he had continued his residence on the land from the latter part of 1881 to the date of the application. An injunction against further mining or removing rock from the land described, or from removing any phosphate that had been dug thereon, was prayed for, and a reference was made to a master to take testimony, and ascertain whether or not an injunction should be allowed.

It appears from the testimony introduced on the reference that a contest arose on Smith's application to prove up his homestead, and the local United States land office for Florida decided in his favor on the testimony, and issued to him a final receipt calling for a patent. The testimony before the land department and the decision of the local officers thereon were before the master, and reported by him with other evidence, with recommendation that the injunction be allowed.

Complainant subsequently filed what is called an 'amended and supplemental bill,' referring to the proceedings under the original bill, stating that an injunction was granted thereon by the court, and further alleging that, at the time of filing said bill, defendants were digging and removing phosphate from the land described therein, and that they continued with renewed force to dig phosphate thereon, and remove it to a tract of land near by, where they had mining operations located; that, pending the application for an injunction under the original bill, defendants removed all the phosphate dug from the land, and it was their intention to ship or dispose of the same, claiming that to do so would be no violation of the injunction granted; that the phosphate dug and removed from said premises pending the granting of the injunction under the original bill amounted to 11,600 tons, and defendants would ship the same unless restrained by the court. The allegation of defendants' insolvency made in the original bill is repeated. The prayer is for an injunction against the shipping, removing, selling, or incumbering the phosphate rock that had been dug and removed from the land described. On December 26, 1895, the injunction prayed for was granted.

Defendants answered, and then moved to dissolve both injunctions granted; and the one allowed on the amended and supplemental bill was dissolved on the 3d day of January, 1896. From this order an appeal was entered by complainant on the 31st day of the same month, to the present term of this court.

Upon an inspection of a certified transcript of the record, the chief justice made an order on the 1st day of February, 1896, that the appeal operate as a supersedeas upon appellant's entering into such bond as to amount and conditions as should be prescribed by the circuit judge. In pursuance of this order, the circuit judge prescribed the amount and conditions of the bond, and it was filed and approved on the 3d day of February, 1896.

A rule nisi, based upon affidavit of appellant, has been issued against James H. Whitfield, James W. Sanders, and A. Trubenbach, to show cause why they should not be held in contempt for a violation of the supersedeas. The rule, after reciting the granting of the injunction against shipping, removing, selling, or incumbering the phosphate rock dug and removed from the premises in question, the dissolution of the injunction, the appeal and perfection of the supersedeas thereon, alleges that Whitfield & Sanders, after due notice of the supersedeas, and in open violation of the injunction or supersedeas order, did, on the 11th of April, 1896, sell, ship, and remove a portion of the rock from said land, to wit, about 200 tons, and that A. Trubenbach, who knew of said injunction and all of the proceedings in said cause, aided and assisted the said Whitfield & Sanders therein.

Whitfield & Sanders answered: First. Denying any violation of the injunction or supersedeas order, as alleged. Second. That the rock mentioned in the rule was shipped and removed by the Anglo-Continental Guano Works, and one James C. Gibson employed by said company, superintended and managed said shipment and removal of the rock. Third. That...