Vosges Syndicate v. Everglades Club Co.

• Decision Date: 31 March 1936
• Citation: 124 Fla. 120,168 So. 859
• Parties: VOSGES SYNDICATE, Limited, et al. v. EVERGLADES CLUB CO. et al.
• Court: Florida Supreme Court

168 So. 859

124 Fla. 120

VOSGES SYNDICATE, Limited, et al. v. EVERGLADES CLUB CO. et al.

Florida Supreme Court

March 31, 1936

Rehearing Denied May 4, 1936.

Suit by the Vosges Syndicate, Limited, and others against the Everglades Club Company and others. From the decree, the complainants appeal.

Affirmed.

En Banc. Appeal from Circuit Court, Palm Beach County C. E. Chillingworth, judge.

COUNSEL

H. J O'Neill, of New York City, and Jos. S. White, S. C. Kearley, and J. Leo Chapman, all of West Palm Beach, for appellants.

Fraser Effler, Shumaker & Winn and H. W. Fraser, all of Toledo, Ohio, and Winters, Foskett & Wilcox and Bert Winters, all of West Palm Beach, for appellees.

OPINION

PER CURIAM.

On May 14, 1935, the circuit court of Palm Beach county entered a decree, the substantial portions of which read as follows:

'This cause was duly presented by counsel for the parties upon final hearing held May 10, 1935. I have again examined the record in this case, and particularly the findings of the court recited in the order of November 10, 1933.

'In the light of the present record I am quite willing now to adopt that expression of my views as they exist at the present time, with the exception of the inference that the record now warrants the foreclosure of the first mortgage bond issue by the plaintiffs in this suit.

'This suit was started August 10, 1933. Approximately twenty-one months elapsed before it was presented for a final hearing. During six months the suit remained practically dormant, while a foreclosure suit in the Federal Court was pressed. The Federal Court suit resulted in a final decree of foreclosure of the property involved in this suit and embraced under the same trust deed.

'There seems to be no need for another final decree of foreclosure.

'Plaintiffs seek further relief in endeavoring to have the Trustees removed and to have them charged by reason of certain breaches of trust. It now appears that the Federal Court has jurisdiction of the res as well as jurisdiction over the person of the Trustees, while this Court has no jurisdiction over the Trustees, and probably has no jurisdiction over the res in view of the orders heretofore entered by this Court with reference to the property.

'It would seem that no useful purpose would be served by any attempt of this Court to remove the Trustees or interfere with the trust at the present time, particularly in view of the fact that a sale of the property is to be held under the Federal Court decree on May 21, 1935. Confusion and doubt as to the validity of the title to the property, working to the detriment of all, would undoubtedly result by the entry of an order by this court attempting to re-invest itself with jurisdiction of the property.

'It is the conclusion of this court that nothing could be accomplished by a partial and ineffectual determination of the matter by this court at the present time. For lack of jurisdiction, there is no other way in which this Court may dispose of the matters presented to it in this case.

'It seems quite proper, in view of the existing complete jurisdiction of the Federal Court, that the Federal Court pass upon the matter of the alleged breaches of trust by the Trustees, as well as the question of their removal and their compensation and liability, if any, all as may be presented by the record in the Federal Court.

'In view of the fact that this Court at this time declines to interfere with the property, and with the Trustees, I do want to particularly state that this decree is not to be construed as, in any sense of the word, approving the actions of the Trustees: Thereupon:

'It is ordered, adjudged and decreed that the amended bill be dismissed, without prejudice, that compensation of the guardian ad litem be fixed at $-----, and that costs in the total amount of $----- be taxed against plaintiffs, for which let execution issue.'

On May 17, 1935, complainants below appealed from the foregoing decree, assigning as...