O'steen v. Thomas

• Decision Date: 07 February 1941
• Court: Florida Supreme Court
• Parties: O'STEEN v. THOMAS.

200 So. 230

146 Fla. 73

O'STEEN v. THOMAS.

Florida Supreme Court

February 7, 1941

Suit by Edith L. O'Steen, also known as Edith O'Steen, by L Raymond O'Steen, her next friend, against Mary J. Thomas a widow, for specific performance and in the alternative for accounting for purchase money received, and to impress lien on property. From an adverse decree, plaintiff appeals.

Reversed and remanded. Appeal from Circuit Court, Dade County; Ross Williams, Judge.

COUNSEL

L Raymond O'Steen, of Miami, for appellant.

Thomas B. Everhart, of Miami, for appellee.

OPINION

BUFORD Justice.

On August 25th, 1939, the Circuit Judge entered an order dismissing the cause with prejudice. The order was recorded on August 26th, 1939.

Motion for rehearing was filed on August 29th, 1939, and supplemental motion for rehearing was filed September 18th 1939. Rehearing was denied on August 12th, 1940.

Notice of appeal was filed and recorded on the 11th day of September 1940.

So it is seen that the supplemental motion for rehearing was filed more than twenty days after the recording of the final decree.

Section 70 of Florida Chancery Practice Act, Acts 1931, c. 14658, § 70, provides:

'Every petition for rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. No rehearing shall be granted unless the petition is filed within twenty days after the recording of the decree.'

Therefore, the supplemental petition for rehearing came too late.

The original motion for rehearing, being timely filed, operated to suspend the final decree dismissing bill of complaint, until that motion was disposed of. See Dade County v. Snyder et ux., 134 Fla. 756, 184 So. 489, 490, wherein we said:

"Section 71. Petition for rehearing as stay. No petition for rehearing shall operate to stay the proceedings unless so ordered by the court. The court in granting any such stay of proceedings, may fix the term and conditions of such stay. The court on ex parte application may grant a stay on such petition for a period not exceeding five days, but no stay for a longer period shall be granted except on notice previously given to the opposing party.' [Sec. 71, Chancery Act of 1931.]

'Counsel for appellees urges that inasmuch as there was no order of the court staying the proceedings pending final determination of the petition for rehearing, the subsequent proceedings and the appeal in this case were ineffectual and without authority. Had affirmative relief been granted either party in this cause, then a stay order would have been proper and appellees' contention might have some force, but in this case there was nothing to stay and the entry of a stay order would have been a useless gesture. The statutory provisions above referred to are different from those construed in Gasque v. Ball, 71 Fla. 257, 71 So. 329.'

So the final decree dismissing the cause became effective August 12, 1940, and plaintiff had six months from that date in which to appeal.

We are not unmindful of what we said in the opinion in the case of Gasque v. Ball, 71 Fla. 257, 71 So. 329, and Thomkin Corporation v. Miami beach et al., 135 Fla. 360, 185 So. 422.

In the instant case, as in the Snyder case, supra, there was nothing for a stay order to operate upon. It also appears in this case that in the order of the Chancellor denying the petition for rehearing the Chancellor adjudicated the sufficiency of the bill of complaint to support a decree of specific performance, and did not consider the sufficiency of the bill as alleging grounds for accounting for purchase money received and impressing an equitable lien on specific property to enforce the repayment of the consideration received. It also appears that in the order August 25th, 1939, to which petition for rehearing was addressed, the Chancellor only considered the sufficiency of the bill as one seeking specific performance and, therefore, plaintiff was entitled to have an adjudication of the sufficiency of the bill to state a cause requiring accounting for purchase price received and the impressing of a lien on specific property to enforce the return or repayment of the purchase price alleged to have been wrongfully retained by defendant.

The suit, as originally filed, was in the name of Edith L. O'Steen, also known as Edith O'Steen, by Raymond O'Steen, her next friend, v. Mary J. Thomas, a widow, and the original bill of complaint in its first paragraph read:

'Come now the complainant, Edity L. Osteen, also known as Edith O'Steen, by L. Raymond O'Steen, her next friend, and brings this her bill of complaint against the defendant Mary J. Thomas, and alleges:'.

The original bill of complaint was, on motion, dismissed with leave to amend. Amended bill of complaint was filed in which parties were likewise described and that bill of complaint was, on motion dismissed with leave to amend.

The second amended bill of complaint was filed and in that the suit was in the name of Edith L. O'Steen also known as Edith O'Steen, a free dealer, v. Mary J. Thomas, and the bill of complaint described the plaintiff as a free dealer. On motion that second amended bill of complaint was dismissed with leave to amend.

A third amended bill of complaint was filed and on motion to dismiss the plaintiff asked leave to amend which was granted.

Then the fourth amended bill of complaint was filed describing the parties as in the second amended bill of complaint. On motion, the fourth amended bill of complaint was dismissed without prejudice.

We may consider here only the fourth amended bill of complaint in that the plaintiff sought specific performance of a contract or, in default of a decree for specific performance, a decree requiring the defendant to repay to the plaintiff the sum of $240 alleged to have been paid to defendant by plaintiff under the contract and to return to plaintiff warranty deed which the plaintiff alleged she had delivered to defendant under the terms of the contract.

The contract relied on was as follows:

'It is agreed between Mary J. Thomas of 1st part and Edith L. O'Steen of 2nd part as follows:

'Party of the first part agrees to sell to party of second part the property described as #6022 N.W. 5th Avenue, Miami, Fla. for the sum of $240.00 cash, receipt of which is acknowledged and a good and sufficient deed and abstract to the property described as #4429 N.W. 22nd Court, Miami, Florida, Deeds to be exchanged upon approval of title by L. Raymond O'Steen, Attorney.

'Second party agrees to assume and pay mortgage now existing on property purchased from 1st party, now showing a balance of $1760.00 held by J....