Switow v. Sher

• Decision Date: 07 February 1939
• Citation: 136 Fla. 284,186 So. 519
• Parties: SWITOW v. SHER et al.
• Court: Florida Supreme Court

186 So. 519

136 Fla. 284

SWITOW v. SHER et al.

Florida Supreme Court, Division A.

February 7, 1939

Creditor's bill by S. J. Switow to set aside allegedly fraudulent conveyance made by Jacob Sher and Samuel C. Levenson, wherein L. M. Gerstel, as trustee in bankruptcy of Charles Gordon filed petition for leave to intervene. From an order granting leave to intervene and an order denying plaintiff's motion to strike out intervener's answer and motion to dismiss intervener's cross-bill, the plaintiff appeals.

Orders affirmed. Appeal from Circuit, Court, Dade County; H. F. Atkinson, judge.

COUNSEL

Marion E. Sibley, of Miami, and Whitfield & Whitfield, of Tallahassee, for appellant.

S. P Robineau, G. M. Budd, Jr., and Troy C. Davis, all of Miami for appellees.

OPINION

BUFORD Justice.

The appeal brings for review order granting petition to intervene signed by the Honorable H. F. Atkinson on March 23, 1938, and recorded on the 24th day of March, 1938, in Chancery Order Book 463 at page 326, and that certain interlocutory order or decree signed by the Honorable H. F. Atkinson on July 5th 1938, and recorded on the 9th day of July, 1938, in Chancery Order Book 474 at page 427, in which the plaintiff's motion to strike the answer of the intervener and motion to dismiss the cross-bill of complaint of the intervenor L. M. Gerstel were denied.

Appellant poses three questions for our consideration as follows:

I. 'Where a plaintiff files a suit at common law as the owner and holder of a promissory note and thereafter files his creditors bill under Section 5035, Compiled General Laws of the State of Florida for 1927, seeking to set aside alleged fraudulent conveyances, may a stranger to such creditors bill intervene therein, over the objection of the plaintiff, for the sole purpose of contesting plaintiff's ownership of the promissory note?'

II. 'May a stranger to a creditors bill, who has intervened therein without order permitting him to intervene otherwise than in subordination to and in recognition of the propriety of the main proceeding, file a cross-bill against the plaintiff for the purpose of trying plaintiff's title to the promissory note sued upon by the plaintiff in a common law action, where the promissory note is not the subject matter of the equity suit?'

III. 'Is the subject matter of a cross suit which seeks to try title and ownership of a promissory note germane to the subject matter of a creditors suit which seeks to set aside fraudulent conveyances and hold property subject to the payment of the plaintiff's claim?'

The appellee submits that the second and third questions should be stated differently, or as follows:

'Second Question: Cross-bill by Intervenor--May a stranger to a creditors bill who has been allowed by the Court to intervene therein for the purpose of asserting his right or establishing his title to a promissory note for the satisfaction of which such creditor's bill was filed, file a cross-bill in said suit against the plaintiff for the purpose of contesting plaintiff's title to such promissory note, upon which a common law action brought by the plaintiff was then pending?'

'Third Question: Subject matter of Cross-bill--Is the subject matter of a cross-bill which seeks to try title and ownership of a promissory note germane to the subject matter of a creditors bill which seeks to set aside fraudulent conveyances and hold property subject to the satisfaction of plaintiff's alleged claim based upon such promissory note alleged in such creditor's bill to be owned by the plaintiff and filed by him in evidence in the creditor's suit?'

Stated either way, the answers to the questions will be the same.

The record shows that in March, 1938, Switow exhibited his creditor's bill in the Circuit Court of Dade County, naming certain defendants, seeking to set aside an alleged fraudulent conveyance alleged to have been made by two debtors named defendants in that suit, one Jacob Sher and one Samuel C. Levenson, under the provisions of Section 3229, R.G.S., section 5035, C.G.L., which is as follows: 'A creditors' bill may be filed in the courts of this State, having chancery jurisdiction, before the claims of indebtedness of the persons filing the same shall have been reduced to judgment, but no such bill shall be entertained by such court, unless the complainants therein shall have first instituted suits in the proper courts at law for the collection of their claims; and no final decree shall be entered upon such creditors' bill until such claims shall have been reduced to judgment.'

In the bill it was alleged, inter alia, 'that on February 3, 1938, he instituted a suit against the defendants, The Lev-Sher Realty Co., Inc., Jacob Sher and Samuel C. Levenson, in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, at Law, the same being entitled S. J. Switow v. The Lev-Sher Realty Co., Inc., a Florida corporation, Jacob Sher and Samuel C. Levenson, being a suit upon a promissory note claiming damages in the sum of $40,000.00. That said promissory note upon which said suit at law was predicated was made jointly by Samuel C. Levenson and Jacob Sher and The Lev-Sher Realty Co., Inc. Said promissory note was made payable to Charles Gordon, Inc., and evidenced money lent by the said Charles Gordon, Inc., to the said makers of the said promissory note. Plaintiff purchased said promissory note for value before maturity and is the holder and owner of the same. In the said common law suit brought for the collection of the said money due on said promissory note, process is issued and placed in the hands of the sheriff and the same has been served upon the defendants in said suit. The declaration has been filed in said cause and the plaintiff will speedily prosecute, the same to final judgment.'

Attached to the bill of complaint was copy of the note sued on in common law action marked Exhibit A and made a part of the bill, which is as follows:

'No. --- $14778.48 Miami, Florida,

March 20, 1928

'On Demand * * * after date for value received we promise to pay to the order of Charles Gordon, Inc. Fourteen Thousand Seven Hundred Seventy-eight 48/100 Dollars Payable at City National Bank of Miama, Florida, with interest thereon at the rate of 8 percent. per annum from date until fully paid. The maker and endorser of this note further agree to waive demand notice of non-payment and protest, and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney's fees for making such collection.

'Deferred interest payments to bear interest from maturity at 8 percent. per annum, payable semi-annually.

'Due --- 193-

'The Lev-Sher Realty Co., Inc.

'By Sam'l C. Levenson, Pres. (Seal)

'By Jacob Sher, Secy. (Seal)

'Jacob Sher (Seal)

'Sam'l C. Levenson (Seal)

'Endorsed on back:

'Charles Gordon, Inc.

'By Charles Gordon, Pres.'

The bill prayed for relief against alleged fraudulent conveyances and asked for the appointment of a Receiver under the creditor's bill to take charge of the property alleged to have been fraudulently conveyed.

When the application for appointment of Receiver came on for hearing before the Honorable H. F. Atkinson, Judge of the Circuit Court of Dade County, Florida, on March 23, 1928, L. M. Gerstel, as Trustee in Bankruptcy of Charles Gordon, presented to the Judge his petition for leave to intervene in the creditors suit 'for the purpose of claiming and asserting and prosecuting the rights to said note as Trustee in Bankruptcy of Charles Gordon.'

Neither Charles Gordon nor Charles Gordon, Inc., was party to the law action nor to the suit instituted by way of creditors bill.

The record shows that upon the application for intervention being made the Chancellor called Switow, appellant here and plaintiff in the court below, as a witness, and during the examination the note, the cause of action sued on in the law action, was introduced in evidence. At the end of the hearing the Court, over objection of appellant's counsel, announced his intention to allow the petitioner to intervene.

The transcript shows that during examination of the witness by Mr. Robineau, Attorney for the Petitioner, the following occurred:

'Q. May I ask you if at future hearings you will make available for us those books of your corporation, showing those entries?

'Mr. Sibley: No.

'The witness: I don't think it is necessary.

'Mr. Robineau: Well, I think we will allow the necessity to be judged by the Court, and not yourself.

'Mr. Sibley: As I understand it, these gentlemen own 18 or 20--maybe 30--chain theatres. This is one of the corporations that own some of those theatres. If they want to go up there on depositions, the books will be available. We will be glad to submit the certificate of the auditor, but I don't think we should be required to haul the books from Kentucky.

'The Court: The question was, was he willing to produce them, and he said no. So that is the end of that at the present time. I want to say here that this paper has just been handed me by Mr. Davis. It appears to be a petition to intervene in this cause by Mr. Gerstel, as trustee in bankruptcy. I have glanced through it and it follows the general out-line of the preliminary statement made by Mr. Robineau.

'Mr. Sibley: You say you want to hear from Mr. Robineau?

'Mr. Robineau: No; he said it follows the previous statement that I have made.

'Mr Sibley: If your Honor please, I think the petition for leave to intervene is improper, in that it attempts to attack the title of the Plaintiff in the main suit. As I understand it, intervention must be filed in subordination to the main...