Sommers v. Apalachicola Northern R. Co.

• Decision Date: 15 December 1922
• Citation: 96 So. 151,85 Fla. 9
• Parties: SOMMERS et al. v. APALACHICOLA NORTHERN R. CO. et al.
• Court: Florida Supreme Court

96 So. 151

85 Fla. 9

SOMMERS et al. v. APALACHICOLA NORTHERN R. CO. et al.

Florida Supreme Court

December 15, 1922

Rehearing Denied April 21, 1923.

Suit by David Sommers and others against the Apalachicola Northern Railroad Company and others. From a decree for defendants plaintiffs appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Parties proceeding on assumption of sufficiency of certificate of disqualification of judge estopped on final hearing to deny it. Where both complainant and defendant have proceeded in the circuit court upon the assumption that a certificate of disqualification of the judge of the circuit court in which the litigation is pending is sufficient in substance to show disqualification, and upon this theory each of the parties has, at different times, submitted the case to other circuit judges upon applications for interlocutory orders, both, or either of them, will thereafter be estopped upon final hearing of the case, coming on for hearing before the judge of another circuit, to deny the sufficiency of the certificate of disqualification.

Decrees and orders of chancery in vacation have same force and effect as if done in term time. Circuit courts sitting in chancery are always open for 'passing interlocutory and final decrees and orders, and all action in said matters in vacation shall have the same force and effect as if done in term time.'

Circuit judge, acting for disqualified judge, has complete chancery jurisdiction. A circuit judge, acting for another circuit court or judge who is disqualified, has jurisdiction in chancery cases to 'hear and determine all such matters as may be submitted to him, and such judge may discharge such duties either in his own or any other jurisdiction, and shall be substituted in all respects in the place (and stead) in the matter aforesaid, of the judge unable or disqualified to act.'

Appointment of judge in chancery in lieu of one disqualified held not change of venue; judge appointed to hear chancery case in lieu of one disqualified may discharge duties either in own or any other jurisdiction; parties agreeing on judge to hear chancery cause in lieu of one disqualified not required to agree on judge, nor that it shall be submitted to next nearest circuit. Where in a chancery cause the judge of the circuit court in which the same is pending is disqualified the cause may be heard and determined by the judge of another circuit upon application by either party, 'and such judge may discharge such duties either in his own or any other jurisdiction,' and such hearing does not require nor amount to a change of venue from one jurisdiction to another. Nothing in the statute requires the parties to agree upon a judge to hear the cause, nor that it shall be submitted to the judge of the circuit next adjoining the circuit in which it is pending.

Circuit judge acting in chancery case in lieu of one disqualified does so by virtue of extraterritorial jurisdiction. A circuit judge, acting in a 'chancery cause' in lieu of a disqualified circuit judge, does so by virtue of the extraterritorial jurisdiction possessed by him under the Constitution and the statutes.

Not presumed. Fraud is not to be presumed, but must be proved. This is the general rule, as well in equity as at law.

Parties not under legal disability may make whatever legal contracts they choose; fact that one of parties to contract drives hard bargain will not alone avoid it. All parties sui juris are free to make whatever contracts they may choose so long as no fraud or deception is practiced and there is no infraction of law. The fact that one of the parties to a contract made a hard bargain will not alone avoid the contract.

Where stockholders assent to corporate action, and no rights of state or creditors intervened, doctrine of estoppel applicable, and plea of ultra vires unavailing. Where stockholders of a corporation have all assented to corporate action, and no rights of the state or creditors intervene the doctrine of estoppel is fully applicable, and the plea of ultra vires is unavailing.

Stockholders participating in acts of corporation estopped to question validity of proceedings. Stockholders who participate in and assent to acts of corporations will not afterwards be heard to complain of such acts, but will be held estopped to question the validity of the proceedings.

Findings of chancellor on facts not disturbed, unless clearly erroneous. The findings of a chancellor on the facts will not be disturbed by an appellate court, unless such findings are clearly shown to be erroneous.

Appeal from Circuit Court, Franklin County; C. L Wilson, judge.

COUNSEL

Y. L. Watson, of Quincy, Cooper, Cooper & Osborne, of Jacksonville, and W. W. Henderson, of St. Louis, Mo., for appellants.

W. J. Oven, of Tallahassee, Francis B. Carter, of Pensacola, and George H. Williams, of St. Louis, Mo., for appellees.

OPINION

WEST J.

This cause is now presented upon appeal from the final decree in favor of defendants entered by the judge of the Fourteenth judicial circuit. At the threshold we are confronted with a question of the jurisdiction of the court entering the decree from which the appeal was taken. The suit was filed in the circuit court of Franklin county, located within and forming a part of the Second judicial circuit. On July 11, 1916, the judge, who was then and is now the judge of that court, filed his certificate of disqualification in the case as follows:

'I. E. C. Love, judge of the circuit court, Second judicial circuit of state of Florida, do hereby certify that I am disqualified to sit in the above-stated cause for the reason that prior to my appointment to the bench I was of counsel for one of the defendants in said cause.'

Subsequently thereto the case was submitted to the judge of the Fourteenth judicial circuit on demurrer of defendants to the bill of complaint. Upon this hearing there was an order sustaining the demurrer, from which order complainants appealed, and upon consideration by this court the order was reversed. Sommers v. Apalachicola Northern R. R. Co., 75 Fla. 159, 78 So. 25.

Complainants thereafter applied for the appointment of a receiver for the properties involved in the litigation. This application was presented to the judge of the First judicial circuit, and upon a hearing a receiver was appointed. From this order an appeal was taken to this court, upon the consideration of which the order was reversed. Apalachicola Northern R. R. Co. v. Sommers, 79 Fla. 816, 85 So. 361.

Thereafter evidence was taken, upon the completion of which notice was given by counsel for defendants to counsel representing complainants that defendants had set the cause down for final hearing on August 23, 1920, before the judge of the Fourteenth judicial circuit in his office at Marianna, Fla. This hearing was postponed for two days by the judge, and came on for hearing before said judge on August 25, 1920, at Marianna, at which time complainants appeared and filed a plea averring that the judge of the Fourteenth judicial circuit was without jurisdiction to hear and determine the case.

The contentions upon this point generally are that a final hearing of the case on the merits by the judge of the Fourteenth judicial circuit amounted to a transfer or change of venue of the cause from the Second to the Fourteenth judicial circuit; that there is no legal authority for such transfer, in the absence of a petition of or agreement by the parties for such change, and therefore the judge of the Fourteenth judicial circuit had no jurisdiction to hear and determine the case.

Upon a hearing this plea was overruled and the final hearing was continued to be heard by the judge in his office at Marianna on October 7, 1920, at which time the cause was submitted on final hearing to said judge in his office at Marianna. On March 8, 1921, a final decree, which, upon motion of counsel for defendants, was made effective as of October 8, 1920, the day upon which the cause was submitted, was entered, in which it was adjudged and decreed that the court had jurisdiction of the subject-matter and of the parties, that the equities of the cause were with the defendants, and that the bill of complaint and amended bill of complaint be dismissed at complainants' cost.

The parties complainant and defendant have proceeded throughout this litigation, until the case came on for final hearing upon motion and notice to complainants by defendants before the judge of the Fourteenth judicial circuit, upon the theory that the certificate of disqualification of the judge of the Second judicial circuit is sufficient in substance to show disqualification. Both parties have so construed the certificate in making applications to other circuit judges for interlocutory orders in the case. Neither of them will now be permitted to question it, but will be held to have waived defects, if there are such, and upon elementary principles of justice estopped from questioning its sufficiency. Finley v. Chamberlin, 46 Fla. 581, 35 So. 1; Warren v. Warren, 73 Fla. 764, 75 So. 35, L. R. A. 1917E, 490.

The statute under which defendants proceeded is section 1481 of the General Statutes, which is as follows:

'1481. (1078) In Case of Inability and Disqualification.--Whenever the judge of any court, other than the supreme and criminal courts of record, shall be unable, from absence, sickness or other cause, or shall be disqualified from interest or any other cause, to discharge any duty whatever appertaining to his office, which may be required to be performed in vacation or between terms, it shall be the duty of any other judge of a court of the same jurisdiction as the court in which the cause is pending, on the...