Zehnbar v. Spillman

• Decision Date: 14 June 1889
• Parties: ZEHNBAR, Sheriff, et al. v. SPILLMAN et al.
• Court: Florida Supreme Court

6 So. 214

25 Fla. 591

ZEHNBAR, Sheriff, et al. v. SPILLMAN et al.

Florida Supreme Court

June 14, 1889

Appeal from circuit court, Putnam county; THOMAS F. KING, Judge.

Syllabus by the Court

SYLLABUS

1. A suit by bill in chancery is the proper proceeding for the removal of trustees, but if the proceeding be by petition which contains proper jurisdictional matter, and makes proper parties, the decree therein will not be void, because the paper is styled a 'petition' instead of 'bill.'

2. The fact that in such petition the prayer is for notice to the defendants instead of subpoena does not of itself render the proceeding void. It is an irregularity that might be waived by the defendants, in which event they would be as fully parties before the court as if brought in by subpoena; but if they fail or refuse to appear on mere notice, without service of subpoena, the court does not acquire jurisdiction of them there being no law to authorize that mode of bringing them within its jurisdiction.

3. A mortgage given by trustees was foreclosed, and the mortgaged property sold, but, the proceeds of sale being insufficient to satisfy the decree, an order was given for executions to issue against the trustees for the balance due, to be satisfied out of trust property not covered by the mortgage. Held, that the order and the executions were void for the reason that trust property can only be reached by proceeding in chancery when it is bound by the trustees within the scope of their authority, and the rule (89, for suits in equity) which authorizes execution on failure of the mortgaged property to satisfy a decree of foreclosure does not apply.

COUNSEL

Fleming & Daniel, for appellants.

J. C Marcy & Son, for appellees.

OPINION

MAXWELL J.

A statement of the main matters of this case will be found in 19 Fla. 500, under the title of 'Shalley, Sheriff, Fairbanks et al. vs. Spillman et al.,' decided at the June term of this court, 1882, Zehnbar having been since substituted as a party in place of Shalley, then sheriff. Referring to that statement for fuller particulars, a brief synopsis will suffice in the present appeal, with the addition of some matters set forth in an amended bill to meet the decision in the former appeal. The original bill was for an injunction sought by appellees to restrain the sale by the sheriff of a parcel of land known as 'Saratoga.' The sheriff held two executions, one in favor of Baker, trustee, and the other in favor of Fairbanks, against Sofiela, St. Charles, and Hind, trustees of St. Johns Co-operative Colony. These executions were issued in accordance with the chancery practice in this state, to satisfy unpaid balances due under the foreclosure of mortgages obtained by said Baker, trustee, and by said Fairbanks against the said three trustees of the colony; the mortgaged property having failed to bring enough to pay the foreclosure decrees. The Saratoga property had been conveyed to the three trustees, and the executions were put upon it under the idea that the title was still in them, and that, therefore, it was subject to the executions. On the other hand, the appellees seek to enjoin a sale under the executions, on the ground that before any lien was acquired under them those trustees had been removed by valid proceedings of court, and thereby divested of their title, and other trustees appointed, through whom said appellees derived title to said property, and because they are the legal owners thereof; the same having been sold and conveyed by the new trustees, Pullis, McConkey, and Kelly, to the Florida Colonization Company, and by the directors of that company sold and conveyed to appellees. They are in possession of the property, and the object of the injunction is to prevent a cloud from being cast on their title by the threatened sale under the executions, and also to prevent a multiplicity of suits.

When the case was here before it went off adversely to appellees, on the ground that it did not appear that the trustees of the St. Johns Co-operative Colony, against whom the executions ran, had been removed, the proceedings under which it was claimed they were removed being proceedings in regard to trustees of the St. Johns Colony, and because their bill to enjoin a sale as a cloud upon the title failed to show that the execution defendants ever had an interest in the land. Upon amendment of the bill made by leave of court, after the case was remanded, it is shown, the allegation not being denied, but admitted by demurrer, that the St. Johns Cooperative Colony and the St. Johns Colony were one and the same organization, and that these names were used interchangeably, but that it was ordinarily known in common parlance and business transactions as the 'St. Johns Colony.' That was the chief matter of amendment. The case thus comes to us relieved of the objection to the bill on which it was decided when here before. It was heard below on the original and amended bills, the answer, which was taken as an answer to both, and a demurrer to the amended bill. As it stands now, appellants maintain that the decree removing the original trustees, and appointing the new ones, did not divest the former, who are defendants in the executions, of their title to the trust property, while appellees claim that it did, and that said property vested in the new trustees appointed by the decree, through whom comes their title; and this, appellants say in their brief, 'is the main question for consideration in the case.'

The question arises in this way: Stockholders of the colony, of which we speak as if there were no variance or confusion in the name, instituted a proceeding in the circuit court of Duval county to have the original trustees of the colony removed, and new trustees appointed. The complaint filed, setting forth the facts on which the application for removal was asked, is styled a 'petition.' So far as appears by the record of that proceeding, which is attached as an exhibit to the bill in this case, there was no process issued against the trustees to bring them into court, and the only showing of notice to them is an affidavit of the attorney in the case that notices of the intended application 'were duly served,'--one sent to St. Charles, a resident of Brazil, November 4, 1880; one served on Sofiela, about the same date; and that Hind gave his assent in writing. The decree rendered in the case has a recital of its 'appearing to the court that due notice had been given said trustees.' It is insisted by appellants that the decree is void, because the court had no jurisdiction to proceed by petition in such a case, and because no legal service or notice of the proceeding was ever had upon the trustees.

The general rule is that the removal of trustees, and the appointment of substitutes, must be by bill in chancery, and not by petition. Where the proceeding has been by petition it was because that mode was authorized by statute. Hill, Trustees, 295; Ex parte Hussey, 2 Whart. 330; In re Van Wyck, 1 Barb. Ch. 565; In re Livingston, 34 N.Y. 569; People v. Norton, 9 N. Y. 176. In this...