Yager v. North & South Alafia River Phosphate Co.

• Decision Date: 24 June 1921
• Citation: 82 Fla. 38,89 So. 340
• Court: Florida Supreme Court
• Parties: YAGER v. NORTH & SOUTH ALAFIA RIVER PHOSPHATE CO. et al.

89 So. 340

82 Fla. 38

YAGER v. NORTH & SOUTH ALAFIA RIVER PHOSPHATE CO. et al.

Florida Supreme Court

June 24, 1921

Rehearing Denied Aug. 5, 1921.

Bill by Ernest Yager against the North & South Alafia River Phosphate Company and others to set aside a decree in another cause. From an order striking and dismissing the bill, the plaintiff appeals.

Motion to dismiss appeal granted.

Syllabus by the Court

SYLLABUS

Person owning interest in land is necessary party. A person owning an interest in land which is sought to be partitioned is a necessary party to the proceedings.

Where person interested is not made a party to proceedings, the decree will be reversed. Where there is a decree awarding a partition of lands in which a person is interested who is not made a party to the proceedings, the decree will be reversed on appeal.

A chancery bill to annul a decree in another suit in the same court is not an original bill but a bill of review. A bill in chancery which seeks to annul the proceedings and decrees in another suit decided in the same court is not an original bill but a bill of review.

A bill of review may be filed only after leave of court. A bill of review which does not rest upon error apparent, nor upon new matter arising after the rendition of the decree sought to be annulled, may be filed only after leave of the court has been obtained.

Allowance of bill of review is not a matter of right, but rests in court's discretion. The allowance of a bill of review is not a matter of right in the parties, but rests in the sound discretion of the court, to be exercised cautiously and sparingly and under circumstances that demonstrate it to be indispensable to the merits and justice of the cause.

A demurrer will lie to want of equity in bill of review. Want of equity in a bill of review may be taken advantage of by demurrer.

Motion to dismiss appeal from order dismissing bill of review filed without leave granted. Where an appeal is taken from an order dismissing a bill of review which was filed without leave of the court and rests upon no error apparent, nor matter arising after the rendition of the decree sought to be annulled, a motion to dismiss the appeal will be granted.

Appeal from Circuit Court, Hillsborough County; F M. Robles, judge.

COUNSEL

H. S Hampton and S. S. Sandford, both of Tampa, for appellant.

McKay &amp Withers, of Tampa, and Arthur F. Odlin, of San Juan, P. R., for appellees.

OPINION

ELLIS J.

This is a suit to set aside a decree of partition, rendered by the circuit court of Hillsborough county in a cause wherein the North & South Alafia River Phosphate Company and the Florida Realty Company were parties, of certain lands in Hillsborough county comprising about 3,000 acres; the latter company owning a two-thirds interest and the former company a one-third interest. The partition suit was brought by the Florida Realty Company, the owner of the two-thirds interest.

The appellant was complainant in the bill to set aside the decree of partition; he brought the suit in behalf of the North & South Alafia River Phosphate Company and all stockholders thereof who might wish to intervene. The defendants named were North & South Alafia River Phosphate Company, the Florida Realty Company, Franc Minton, J. A. Carrier, Fannie C. Carney, La Forest A. Shattuck, Aaron C. Winturn, A. F. Odlin, A. C. Holden, Samuel McCracken, and William T. Abbott. These were the parties named in the second amended bill of complaint filed June 14, 1920.

To the first bill of complaint filed Franc Minton, J. A. Carrier, F. C. Carney, La Forest A. Shattuck, William T. Abbott, and Samuel McCracken filed disclaimers. All other defendants interposed demurrers, which were sustained, except the demurrer of the North & South Alafia River Phosphate Company, as to which no order was made. By order of March 20, 1920, the complainant was allowed to amend his bill on or before the rule day in April, 1920, failing to do which the bill should be dismissed.

An amended bill was filed by complainant within the time allowed. That bill named Ernest Yager as complainant individually, and not in behalf of any one else, and named the same parties defendant. To this bill the defendants A. C. Holden, the Florida Realty Company, and A. F. Odlin interposed demurrers, which were sustained on May 15, 1920; the grounds being that there was no equity in the bill; that complainant has a remedy at law for any damages sustained; laches; that the bill shows that complainant took part in the litigation complained of in 1914 and never took an appeal from the decrees rendered; and that the bill was a mere repetition of the original bill, to which demurrers had been sustained.

The complainant on June 14, 1920, then filed his second amended bill of complaint for himself and on behalf of North & South Alafia River Phosphate Company and all individual stockholders thereof as mentioned above. The bill prayed that the decree of partition rendered in the case mentioned and all proceedings thereunder, including the decrees awarding to A. F. Odlin counsel fees, the sheriff's does wherein the property was sold to La Forest A. Shattuck, and all conveyances by Shattuck to defendants named, be set aside as null and void as against the complainant and the North & South Alafia River Phosphate Company, and that the defendants be ordered to reconvey the land to that company and for general relief.

On June 21, 1920, A. F. Odlin, on his own behalf and as counsel for A. C. Holden and Florida Realty Company, moved the court to strike the bill from the files of the court upon the grounds that the bill did not comply with the court's order on the demurrers to the first amended bill allowing the complainant to amend if it was filed on behalf of some stockholder in the North & South Alafia Phosphate Company other than Ernest Yager himself, 'he being estopped by the ruling of this court'; that the bill was not filed within the 30 days allowed by the court; that the bill is brought in behalf of the North & South Alafia River Phosphate Company, which is also named as a defendant in both original and amended bill; that the record does not disclose that the court permitted the complainant to file a bill in behalf of that company, which had filed to other bills an answer amounting to a disclaimer; that it does not appear that Yager had any power or authority to sue in behalf of the company that the second amended bill is a mere amplification of the first amended bill, to which demurrers had been sustained; that the second bill contains no new matter showing any right to the relief prayed different from the allegations of the first amended bill; that it affirmatively shows that complainant was a party to the partition suit, the decree in which he seeks to annul, and never appealed from the decrees or orders in that cause; that the bill shows that the demurrer interposed by Yager in the partition suit was never ruled upon by this court, and also shows that it was, which latter allegation is true; that the bill is inconsistent in its allegations as to the ownership of lands by the North & South Alafia River Company; that the bill shows that complainant in January, 1916, entered a suit to vacate the proceedings in the said partition suit, which was dismissed for failure to prosecute in the summer of 1916, and that the complainant...