41 Fla. 421 | Fla. | 1899
On the 14th day of December, 1896, D. A. Miller, F. P. Gaffney, H. C. Groves and Alexander McIntyre filed their bill in equity in the Circuit Court of Alachua county against the appellants, alleging, among other things, that Miller, Gaffney and Groves were holders of common stock of the Continental National Building and Loan Association, that was a corporation organized under the laws of Florida, having its principal office at Gainesville, Florida, and that McIntyre was the holder of twenty shares of the installment stock of The Florida National Building and Loan Association; that G. W. Hyde was president of said corporation; that James M. Graham was vice-president and treasurer thereof, and C. M. Ackerman secretary thereof; that the defendant the First National Bank of Gainesville is a corporation of which the defendant Graham is president, and the defendant G. W. Hyde is vice-president; that The
Drucilla Agnew, Sarah M. Agnew and R. T. Gardner, on petition, were made parties complainant to the bill. After answers filed by all the defendants, and upon testimony taken before a master, the Circuit Judge on the 31st day of July, 1897, made an order appointing G. S. Scott receiver, with power to take possession of all the books, records, assets and property of every nature whatsoever belonging to the Florida National Building and Loan Association on the 29th day of October, 1895,
“Gainesville, Fla., Deer. 17, 1897.
Mr. G. S. Scott,
Dear Sir: Yrs. of 16th reed. Am in the midst of a homicide trial. Do not deliver any papers without the order of the court. Yrs. truly,
W. A. Hocker.”
That since receipt of the said .¿tter respondent has acted in the belief that until some order should be made by the proper court directing and requiring him to make delivery of said assets and property, it was not lawful or proper that respondent should take any action in the premises, and respondent says that he has no knowledge of the making of any such order, if any such order has ever been made, and that his retention, of the assets and property is, and has always been, in good faith and in accordance with what he has felt assured was the meaning of the said direction and instructon received from the Judge of the Circuit Court; that as set forth in said letter to the Circuit Judge, this re>spondent has actually expended a large amount of money in and about the performance of his duty as such receiver, which amounts to the sum of $263, and that respondent has likewise incurred expenses amounting to $25 additional which sum has not been paid for lack of funds, and that respondent should likewise be en
The appellants, notwithstanding said answer, now moves that the said G. S. Scott be held in contempt for disobedience of the said supersedeas order, and the respondent moves for a discharge of the rule.
It is contended here by the respondent’s counsel that, because the Circuit Judge granted the supersedeas order, this court is not the proper forum to deal, by way of contempt proceedings, with any violation of such supersedeas, but that the Circuit Judge can alone deal with such contempt. This contention is untenable. While our statute, subdivision 2 of section 1458, Revised Statutes, provides that in appeals to this court from interlocutory orders and decrees in chancery causes, the Circuit Judge, as well as a justice of this court, can order
The denial in the respondent’s answer that the appellants had given the supersedeas bond in the sum of $8,000, conditioned as required by the supersedeas order, in that it was not made payable to numerous persons alleged in the respondent’s answer to have been parties complainant to the bill subsequently to the making of the interlocutory decree appealed from and prior to the taking of the appeal, is without merit. The certified record before this court in the cause shows no such alleged addition of new parties complainant in the court below, but does show that the appellants filed a supersedeas bond in the amount and upon the conditions as ordered, and payable to all the parties to the decree appealed from. As to the parties to the appeal this court must be governed by what is disclosed in the certified record. As to1 the warnings and advice of counsel against obeying the order of supersedeas, it is well settled that it is no answer to a proceeding as for a contempt for the breach of an injunction or supersedeas order that the breach was committed under the advice of counsel. Hawley v. Bennett, 4 Paige, 162; Cape May and Schellenger’s Landing R. R. Co. v. Johnson, 35 N.
That phase of the answer that sets up the instruction by letter from the Circuit Judge to the respondent not to deliver the property can not excuse him. The appeal removed the case to this court. The power of the Circuit Judge was suspended by the supersedeas, and after it was perfeced the Circuit Judge had no power to make any further order relative to the property in the receiver’s hands, until after this court had acted in the premises. State v. Johnson, 13 Fla. 33.
The respondent in his answer suggests that he should be paid certain amounts alleged to have been disbursed by him as receiver, and paid for his services as receiver, before being required to re-deliver the property in his hands. As was held in the case of State v. Johnson, supra, the supersedeas does not have the effect of discharging the receiver, but simply suspends his authority to act as such pending the supersedeas. All questions of the receiver’s compensation are properly adjustable in the Circuit Court, after this court shall have passed upon the appeal taken from the order appointing him, and have no place in a proceeding like this for contempt.
While there is nothing set up in the answer of the respondent that excuses or releases him from obeying the supersedeas perfected in the case, by delivering up to the party or parties from whom he obtained it all the properties of every kind that came to his hands as receiver under the superseded decree appealed from, yet we must hold that the particular contempt alleged against him in this proceeding can not be sustained. The record in the cause shows that the properties over