Wingate v. Mach

Decision Date02 April 1934
Citation114 Fla. 380,154 So. 192
PartiesWINGATE et al. v. MACH et al.
CourtFlorida Supreme Court
En Banc.

Suit by Joe Wingate and another against Otto Mach and another, as executors of the purported last will and testament of Emil Mach, deceased, and others. From an order denying a motion by the complainants for appointment of an administrator pendente lite, receiver, and injunction, and for consolidation of equity cause with another proceeding, the complainants appeal. On application by the complainants for a constitutional writ.

Constitutional writ denied. Appeal from Circuit Court, Osceola County; Frank A. Smith, judge.

COUNSEL

George P. Garrett, of Orlando, and Johnston & Rogers, of Kissimmee for appellants.

Hugh Akerman and Allison E. Palmer, both of Orlando, for appellees.

OPINION

PER CURIAM.

This is an application by the appellants seeking to invoke the powers of this court to issue a constitutional writ under section 5 of article 5 of the Constitution, it being alleged that the issuance of the writ prayed for is necessary to preserve the subject-matter of the controversy pending the decision of this appeal.

The suit below was a bill in equity brought by the complainants for the purpose of securing the appointment of a receiver pendente lite to manage and operate the Mach Lumber & Crate Mill while certain litigation was pending with regard to the validity of a will made by one Emil Mach, deceased. Ernest Mach joined in the suit not only as a creditor of the estate but as an heir of the estate, alleging himself entitled to receive one-half of the property left by said Emil Mach, if his will should be found to be inoperative, or that he died intestate. The other complainant, Joe Wingate, asserts a claim against the estate of Emil Mach and alleged that in order to enforce said claim that he had brought an action at common law in the circuit court of the Seventeenth judicial circuit in order to reduce his claim to judgment against the purported executors of the estate of Emil Mach.

Upon an application of the complainants for the appointment of an administrator pendente lite, receiver, and injunction, and for consolidation of the equity cause with a proceeding brought pursuant to section 5618, C. G. L., section 3745, R G. S., an order was entered by the circuit judge denying complainants' motion, whereupon complainants have appealed.

The application for a constitutional writ avers that the cause being appealed involves ownership, right of possession, and management and control of property belonging to Emil Mach deceased, of which he died possessed, and that appellees are adverse claimants claiming as legatees and devisees under the purported will of Emil Mach, deceased, and as executors thereof. It is further alleged that appellees are continuing the business of Mach Lumber & Crate Mill, which was conducted by Emil Mach in his lifetime, against the consent of appellants, who, as creditors, are alleged to be the only two large creditors of the said estate; that the appellees Mary Mosgrove and her husband, Will Mosgrove, are utterly insolvent and that the appellees, as executors, are not under the law authorized to continue the business of the decedent even...

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4 cases
  • Pickerill v. Schott
    • United States
    • Florida Supreme Court
    • December 18, 1951
    ...sales pending the appeal. This Court has heretofore denied the application for Constitutional Writ. See Supreme Court Rule 33, 30 F.S.A., Wingate v. Mach, 114 Fla. 380, 154 So. 192. State ex rel. Watson v. Lee, 150 Fla. 496, 8 So.2d On appeal the appellants contend that the Statute in quest......
  • Anderson v. Tower Amusement Co.
    • United States
    • Florida Supreme Court
    • February 16, 1935
    ...without her written consent, the injunctive process being merely the means by which the end is to be accomplished. 14 R. C. L., par. 83, p. 383. A right specific performance comprehends the right to enjoin third parties from willfully and unlawfully circumventing performance by the parties ......
  • Newberry v. Harris
    • United States
    • Florida Supreme Court
    • April 2, 1934
  • Wingate v. Mach
    • United States
    • Florida Supreme Court
    • October 30, 1934
    ...orders, plaintiffs in equity suit bring error, and both causes were consolidated in the Supreme Court. Affirmed. See, also (Fla.) 154 So. 192. Appeal from Court, Osceola County; Frank A. Smith, judge. COUNSEL Johnston & Rogers, of Kissimmee, and George P. Garrett, of Orlando, for appellants......

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