Theo. Hirsch Co. v. Scott

• Decision Date: 04 April 1924
• Citation: 100 So. 157,87 Fla. 336
• Parties: THEO. HIRSCH CO. et al. v. SCOTT.
• Court: Florida Supreme Court

100 So. 157

87 Fla. 336

THEO. HIRSCH CO. et al. v. SCOTT.

Florida Supreme Court, Division B.

April 4, 1924

Suit by the Theo. Hirsch Company and another against the McDonald Furniture Company, in which Paul R. Scott was appointed receiver. From a decree for defendant, plaintiffs appeal. On motion to dismiss appeal.

Motion denied.

Syllabus by the Court

SYLLABUS

Matters arising after final appealable judgments or decrees requiring judicial action relative to rights litigated in main suit appealable. An appeal may be taken upon matters arising after a final appealable judgment or decree which require the judicial action of the court in relation to the rights litigated in the main suit making necessary a substantive and important order or decree, and such order or decree partakes of the nature of a final decision of those rights.

Subsequent decree requiring judicial action on matters arising after final decree reviewable. After a final decree adjudicating the rights between the parties to the suit and the principal subject of litigation, a subsequent decree, disposing of other matters arising after the final decree which required judicial action, may be reviewed on appeal.

Debtor in receivership has appealable interest in order diverting proceeds of his property to purposes other than extinguishment of his debt. In a receivership matter the debtor who is a party to the main suit has an interest in seeing that the proceeds of his property are properly applied to the extinguishment of his debt as far as possible, and any amount taken from the assets, which should be distributed among his creditors, prevents the reduction of his indebtedness to that extent, and he has an interest in the conservation and distribution of the assets which gives him an appealable interest in orders or decrees that divert these assets to other purposes.

Receiver may be made sole appellee in appeal from order fixing his compensation. A receiver, although not a party to the original suit, may be made a party to an appeal from an order fixing his compensation as receiver, and he may be named as the only appellee.

Parties incidentally interested may intervene to protect interests interveners may appeal or be brought into court on appeal when final decision of their right or claim made below. Persons incidentally interested in some branch of a cause are allowed to intervene for the purpose of protecting their interests, and may appeal or be brought into court on appeal when a final decision of their right or claim has been made by the court below.

Appeal from Circuit Court, Dade County; Mitchell D. Price, Judge.

COUNSEL

Evans & Mershon and Shutts & Bowen, all of Miami, for appellants.

Robert H. Anderson, of Jacksonville, and Paul R. Scott, of Miami, for appellee.

OPINION

BROWNE J.

This is a motion by Paul R. Scott, receiver for the McDonald Furniture Company, to dismiss an appeal entered by the Theo. Hirsch Company and the McDonald Furniture Company, jointly and severally, from certain orders and decrees, that will be stated hereafter.

The Theo. Hirsch Company brought a bill in equity against the McDonald Furniture Company for accounting, for the appointment of receiver, and an injunction. Paul R. Scott was appointed receiver, and took over the control and management of the property.

On March 28, 1923, a consent decree was entered adjudicating the rights of the parties to the suit, but giving the complainant 'leave to file with the receiver his proof of any additional claim he may have against said defendant,' and ordering the receiver to make distribution of the assets of the estate, and to liquidate, settle, and wind up the affairs of the estate, 'making to the court, from time to time, reports of his acts and doings in the premises under the final decree.'

On the 2d of May, after due notice, a petition was filed, by the receiver, Paul R. Scott, asking the circuit judge to fix the amount of compensation to be allowed him and his attorney. On May 14th, before the hearing of this petition, there was filed a suggestion of the disqualification of Judge H. F. Atkinson under the provisions of section 2674, Revised General Statutes 1920, and the receiver on the same day gave notice of his intention to call up his petition before Hon. E. C. Davis, judge of the Fifteenth judicial circuit of Florida, on the 16th of May, 1923.

On May 16th Judge H. F. Atkinson entered an order in which, among other things, he 'decreed that the said application for disqualification of Hon. H. F. Atkinson, judge of the circuit court of the Eleventh judicial circuit of the state of Florida, in and for Dade County, Florida, be and the same is hereby denied and overruled.'

On the 17th of May, an order and decree signed by E. C. Davis, judge of the circuit court of the Fifteenth circuit, was filed and recorded in the chancery order book of the circuit court of Dade county, in which it was considered, ordered, adjudged, and decreed that Judge H. F. Atkinson was disqualified to hear the application by reason of his prejudice against Paul R. Scott, and awarded and allowed Scott the sum of $15,000 for his compensation as receiver.

On the 19th of May, the McDonald Furniture Company filed its answer to the petition of Paul R. Scott, and protested against allowing him anything for his services as receiver in excess of nominal compensation.

Subsequently the Theo. Hirsch Company filed a petition before Judge E. C. Davis, praying that he cancel and set aside the order entered by him on May 16, 1923, whereby the compensation of Paul R. Scott was fixed by him at $15,000. This was denied, but petitioner allowed to apply for a modification of the order if he so desired, and given until January 7th to present evidence in support thereof.

On August 30th another motion was made to set aside the order made by Judge Davis of the Fifteenth circuit, granting compensation to the receiver. It was not addressed to any circuit judge, but in view of subsequent proceedings we can assume it was to be presented to Judge Mitchell D. Price, one of the judges of the Eleventh judicial circuit.

On September 7th there was a suggestion of the disqualification of Judge Price, because before becoming circuit judge he made an affidavit as to the value of the professional services of E. B. Kurtz, attorney for the receiver. The suggestion of his disqualification was denied by Judge Price on the grounds that the question raised by the motion related only to the 'jurisdiction of the Honorable E. C. Davis over the subject-matter embraced in his order.'

On the 6th of September, Judge Price entered an order overruling and denying the motion to set aside the order made by Judge Davis, granting compensation to the receiver and to the attorney for the receiver in so far as it fixed the compensation of Paul R. Scott, the receiver, and granted the motion to the extent that it fixed the compensation of E. B. Kurtz, attorney for the receiver.

From the order of Judge E. C. Davis, fixing the compensation of Paul R. Scott as receiver, and from the order of Judge E. C. Davis denying the petition to set aside and vacate his order of that date, and from the order of Judge Mitchell D. Price denying the motion to set aside and vacate the order of Judge E. C. Davis made May 16, 1923, fixing the compensation of Paul R. Scott, receiver, this appeal is taken.

The first, second, third, and fourth grounds of the motion to dismiss the appeal will be discussed together, as they involve the right to appeal from orders or decrees made subsequent to the decree adjudicating the rights of the original parties to the suit.

As a general rule an appeal, or other proceeding for review, will not lie from an interlocutory order or decree unless specially permitted by statute or constitutional provision, and in the absence of such provision, in order that there may be a review on appeal, a final judgment, order, or decree must have been rendered in the cause. 3 C.J. pp. 432 and 433, and cases cited.

Section 3169, Revised General Statutes of Florida 1920, allows appeals from interlocutory orders and decrees.

Interlocutory orders or decrees are defined by Blackstone as 'such as are given in the middle of a cause, upon some plea, proceeding, or default which is only intermediate, and does not finally determine or complete the suit.' 3 Blackstone's Commentaries, 396. See Crockett v. Crockett, 132 Iowa, 388, 106 N.W. 944; Reed v. Reed, 9 Cal. App. 748, 100 P. 897; Elliott v. Mayfield, 3 Ala. 223; State ex rel. Potter v. Riley, 219 Mo. 667, 118 S.W. 647; Miller v. Crawford, 140 Mo.App. 711, 126 S.W. 984.

It is contended that this appeal not being from an interlocutory order or decree, nor from the consent decree entered on the 28th of March which determined the equities and adjudicated the matters in controversy between the parties to the main suit, it cannot be entertained by this court, and should be dismissed.

The controlling rule with regard to this appeal is thus stated in Corpus Juris:

'As a general rule, however, even in the absence of special statutory provisions, an appeal may be taken upon matters arising after a final appealable judgment or decree which require the judicial action of the court in relation to the rights litigated in the main suit making necessary a substantive and important order or decree, when such order or decree partakes of the nature of a final decision of those rights. But the appeal must be prosecuted on some new and distinct ground not covered by the original judgment or decree; and it has been held that on such an appeal only matters arising subsequent to the final judgment or decree can be reviewed.' 3 C.J. 518.

The consent decree provided for the continuance of the...