Town of Coreytown v. State ex rel. Ervin

• Decision Date: 29 August 1952
• Citation: 60 So.2d 482
• Parties: TOWN OF COREYTOWN et al. v. STATE ex rel. ERVIN, Attorney General et al.
• Court: Florida Supreme Court

Page 482

60 So.2d 482

TOWN OF COREYTOWN et al. v. STATE ex rel. ERVIN, Attorney General et al.

Supreme Court of Florida, Special Division B.

Aug. 29, 1952.

Rehearing Denied Oct. 2, 1952.

Wolfe, Wightman & Rowe, John R. Bonner, Clearwater, and Charles J. Schuh & Son, St. Petersburg, for appellants.

Richard W. Ervin, Atty. Gen., Richard G. Key and Jack Clark, St. Petersburg, for appellees.

REVELS, Associate Justice.

This is an appeal from final judgment of ouster entered August 1, 1951, by the Circuit Court of the Sixth Judicial Circuit of Florida, in and for Pinellas County. The appellees (relator and co-relators in the Court below) filed their amended information in the nature of a quo warranto suit on January 30, 1951. On February 10, 1951, appellants (respondents in Court below) filed defenses in the nature of motion to strike and motion to dismiss, which were denied on April 10, 1951, and the appellants were allowed until May 1st to file their reply to said amended information. On said date appellants filed their answer and defenses to said amended information, and on June 15th appellees filed a motion for judgment of ouster notwithstanding the return. Subsequently, on July 2, 1951, the Court entered an order of continuance until July 20, 1951, at 1:00 p. m. From an examination of the record before this Court it appears that the only order entered by the Court below on July 20, 1951, was one setting the cause for trial before a jury Monday morning, at 9:30 a. m., July 23, 1951; that prior to going to trial on July 23, 1951, the Court held a pre-trial conference on the case. It is considered advisable to incorporate herein the material part of the proceedings at the pre-trial, to wit:

'It has been set by the court; the jury is in the courtroom ready for trial of this case. Present are Mr. Jack Clark and Mr. Richard G. Key, representing the Relators and Co-relators. Mr. Maurice Schuh and Mr. John W. Rowe, representing the respondents. After a hearing on a motion for judgment of ouster, notwithstanding the return argued before this court in St. Petersburg, Florida, last Friday, July 20, 1951, the Court at that time stated the issue as it seemed to him to be was whether or not twenty five or more free holders, and registered voters, lived in the area incorporated and participated in the meeting of incorporation.

The town requested this jury trial and requested right to amend its answer to include, or to look into the matter of amending the answer to show whether or not twenty five people were there at that time in accordance with the qualification required by Section 165 or the Laws of Florida [F.S.A.] relating to the incorporation of cities and towns. The answer of the respondents also set up estoppel on the co-relators' part and laches and estoppel as far as the relator and co-relator were concerned. The court at that time announced that he did not feel that estoppel would lie against the State of Florida in this case because there had been no detriment to the respondents. If anything, a benefit had been accruing to them all along rather than a detriment as required for estoppel or laches to lie. Thus, the issue was limited to whether or not there were twenty five or more free holders and registered voters resident in the area sought to be incorporated.

'The Court gave the respondents an opportunity to amend and set the case for trial by jury Monday Morning at 9:30, July 23, 1951. Saturday about noon, July 21st, counsel for the respondents, Mr. Rowe, called the court and advised the court that he could not see his way clear with propriety to amend his answer to recite that there were twenty five or more registered free holders living in the area sought to be incorporated at the time of the reported incorporation, since he had investigated the matter. Is that it, Mr. Rowe?

'By Mr. Rowe: I will make a statement for the record, your honor.

'The Court: That he had investigated the matter and could not find whether or not there were actually twenty five or more people there and stated to the court that the town could consent to the entry of the order or judgment of ouster at this proceedings. Thus, as the court determines it, there is no issue of fact to be tried by the jury since the court has limited the issue of fact to the question of whether or not there were twenty five or more residents free holder registered voters, and it apparently is conceded by counsel for respondents that there were not twenty five people registered as free holders resident in the area. Am I correct in that.

'Mr. Rowe: I might say, your honor, that we are not ready for trial this morning. The court rendered its decision last Friday afternoon at 3:00 o'clock and of course, it was about 4:00 o'clock before I got back here and started working on the matter and I went to the registrar's office to determine from the registered list there and we found that of those persons who subscribed and who were at the incorporators' meeting that there were 31 of them in that precinct who were registered voters but only 17 of them were registered free holders, the wife of one of them not registering as a free holder. That would mean that there were thirteen, according to the records, non registered free holders.

'Now, I tried to determine by going to the abstract office, if it would be possible to find out if those names would be listed with any interest in any property and I was unable to do that and after having done that I called the court, because it was impossible--it was impossible for us to subpoena the 31 or so persons and have them here this morning and our contention is, your honor, that under the statute which says that those who participated in the hearing must be free holders and registered voters. Now, that doesn't mean that they had to be registered free holders and the court has said and the legislature has said that a free holder shall be deemed to be a person who has an immediate, beneficial ownership interest, real or equitable and the title in fee simple to the land stated.

'We are not in the position, your honor, to make that allegation that they were registered. I mean that they did have beneficial or legal interests in land because we haven't had the opportunity to do that.

'The Court: They have to be registered with the supervisor of registration as a free holder, do they not, before they are entitled to participate?

'Mr. Rowe: The statute doesn't say that. Here is the wording of the statute on it. Section 165. Here is the essence. 'A notice requiring all persons, male and female, who are freeholders and who are registered voters residing in the proposed corporate limits.' I am a free holder, though I am not a registered free holder under the statute there, so your honor----

'The Court: The court construes it as a matter of law then--that qualification--'who are freeholders and who are registered voters'--that they must be both in order to participate. That is a matter of law.

'Mr. Rowe: In other words, that is your ruling?

'The Court: That is my ruling.

'Mr. Rowe: Your honor, as we have said, we are not in position to go to trial on this matter. We haven't had an opportunity to talk to all these individuals here and I asked the court Friday if he would allow us to consider amending or return here and at this time I move the court to permit the respondents to strike from their answer and defenses subsections 3, 4, 5, and 6, of Defense Number 1, and further move the court to allow us to rephrase and strengthen Defense Number 2 and state more specifically the facts constituting acquiescence and recognition and to abandon Defense Number 3 and assert Defense Number 4, of course, and then if the court please, enter its order of ouster based upon our amended answer. I do that for this reason, your honor, that I think it is encumbent upon us as counsel of the town. I don't know what disposition the town will make of this matter--it is something solely for their decision but I do think it is encumbent upon us to have the record in shape as best we can prepare it in the event that the town should desire to go further with the matter.

'The Court: I want to accommodate you, Mr. Rowe, to get the record in shape for appeal if you want to. I have given you and the town, I think, every opportunity in this matter to bring it to a head. The matter has been pending since November 18, 1950, and at every hearing there has been something wrong--we couldn't hold the hearing, and finally we got it down to issue and you should have been ready for trial at the time you filed your regular answer. Do you have any objections to striking Paragraphs 3, 4, 5 and 6, of Defense One, amending Defense Two, Mr. Clark?

'Mr. Rowe: To show more specifically the facts rather than the conclusions.

'The Court: I am going to deny that because I have already ruled that laches or estoppel do not lie. If I am wrong the Supreme Court can correct me on it. What about the third? Did you say anything about the Third?

'Mr. Rowe: I will withdraw my motion to abandon that if the court doesn't allow us to amend the second defense, so I move, in view of the court's ruling then, the motion stands that we be permitted to strike 3, 4, 5 and 6 of Defense Number 1.

'The Court: You want to strike them?

'Mr. Rowe: Yes, sir.

'The Court: That doesn't carry with it any request for amendment?

'Mr. Rowe: No, sir, just strike it.

'The Court: I suppose you won't object to that, Mr. Clark. The motion will be granted.

'Mr. Rowe: And then we be permitted to file an amended answer and defenses according to the court's ruling here--that is leaving out 3, 4, 5 and 6 of Defense One and then the answer will be the same.

'The Court: Your answer is One and Two. That is all you have left.

'Mr. Rowe: Yes, but in other words, our amended answer would also feflect Defenses 2 and 3 as they now stand. Of course, the court has already ruled against them.

'The Court: I just...