McKinnon-Young Co. v. Stockton, 53 Fla. 734

McKinnon-Young Co. v. Stockton

53 Fla. 734 | Fla. | 1907

Taylor, J.

(after stating the facts) : The errors assigned question the propriety of the rulings of the circuit court overruling the plea filed by the defendants, and •overruling the several demurrers to the petition filed by the defendants. The contention of the plea filed by the defendants is to the effect that the cause in which the petition was filed having been carried by appeal to the appellate court prior to the filing of such petition, that the ?cid cause was therefore transferred to, and pending in, such appellate court, and that the circuit court had no jurisdiction to entertain any matter in anywise involved in or connected with said cause while so* pending in the appellate court. There is no merit in this contention. While the.main cause with its material issues and the rulings thereon of the court of first instance was trans ferred to, and was pending for rewiew in, the appellate court, yet the properties involved in such cause were not so transferred, but remained in the custody and care of the circuit court and its officers and agents, and notwithstanding such appeal the circuit court retained full power to protect and safely preserve said properties from destruction, depredation or waste pending such appeal by all necessary orders and proceedings looking to that end, to the same extent as though no appeal had been taken. *764Jennings v. Carson, 4 Cranch (U. S.) 2; Grant v. Phoenix Life Ins. Co., 121 U. S. 118, 7 Sup. Ct. Rep.. 849. In the Slaughter-house Cases, 10 Wall (U. S.) 273, the principle is expressed as follows: “Judgments and decrees of the circuit court are brought here for a re-exánünation, and so are judgments and decrees of a state court, and the only effect of the supersedeas is to. prevent all further proceedings in the subordinate court except such as are necessary to preserve the rights of the parties.”

In Goddard v. Ordway, 94 U. S. 672, it is said: “While the court below may make the necessary orders, to. preserve, the fund, and direct its receiver to that extent, it cannot place the money beyond the "control of any decree that may be nxade here, for that would, be to defeat our jurisdiction.” Spring v. The South Carolina Insurance Co., 6 Wheat. 519. The real effect of an appeal with supex»sedeas is to suspend the power of the court below to xnake any order tending towards an execution or enforcement of the decree appealed from, but it does not interfere with the poxver of such couxff to make any order necessary for the presentation of the funds or property involved in the litigation pending such an appeal, when such order’s do not tend towards an execution or enforcement of the order or decree appealed from, or to. place the property or funds involved beyond the reach or control of the judgment or decree of the appellate court. Neither was- there error in overruling the demurrers of the defendants to the petition filed by the said trustee receivers. The petitioners, though made trustees for the more advantageous sale and disposition of all the properties involved by consent and agreement of all parties, concerned, were nevertheless» to- all intents and purposes receivers of the court of such prop*765erties, and subject at all times to the control and direction of the court in all of their actions and doings with reference to the funds and properties entrusted to their care, and were at all times under the protection o,f the court in all matters connected therewith. The petition alleges expressly that such receivers were in possession of the property' alleged to be interfered with by the defendants in such petition. It sets out fully what it alleges to be the only claims of such defendants to the right to do the acts complained of. It alleges fully that a large part of the lands in their possession as such receivers were originally conveyed to the Wylly-Gabbett Company by the defendant, the McKinnon-Young Company, and that ■in the deed of conveyance the latter company reserved the right to take the turpentine from the pine timber on said lands up to and until certain fixed and specified dates named in said deed, at which dates the said reserved rights were to cease and determine, but that notwithstanding said reserved rights had expired and determined in and to a large proportion of the lands in which they had been reserved originally, that yet the defendants were asserting the right to go back upon the lands in which such reserved rights had expired and back-box or re-box the trees and to take the turpentine therefrom, and were thereby interfering with and preventing an advantageous sale of said lands by said receivers that had been negotiated by them with parties to whom the defendant, the McKinnon-Young Company, had telegraphed setting up their pretended claims. That said pretended claim of the defendants to continue to take the turpentine from said lands notwithstanding the expiration and determination of the rights reserved therein by the said deed by the terms of the *766deed itself, rests solely on a pretended verbal agreement pretended to have been made with the president of said Wylly-Gabbett Company and upon a letter written by said president to the McKinnon-Young Company on October 2áth, 1905, long -after said property had been taken charge of by the court through its receiver appointed first on May 5th, 1905, and upon a written contract executed by the Wylly-Gabbett Company to the McKinnon-Y^oung Company on the 21th day of May, 1906, long after all of said properties had been taken out of the possession and control of said Wylly-Gabbett Company, by the orders of the court, and put into the hands of the court receivers. The demurrers admit these allegations of fact to- be true, and if true then the court ruled correctly in overruling the demurrers and putting the defendants to their' answer. If the McKinnon-Young Company -had in fact a valid and enforceable verbal contract with the Wylly-Gabbett Company by which their reserved rights to turpentine these lands were extended beyond the times and dates fixed in the original deed for their expiration and determination, such company should, after -said properties ka,d been taken charge of by the court through its receivers, have gone to said court for- leave to consummate such verbal agreement or to have same put in tangible binding form (Noe v. Gibson, 7 Paige Chy. 513); but instead thereof, regardless of the authority of the courts in the premises, they unwarrantably go to the president of such Wylly-Gabbett Company, after said lands had been taken out of its hands by the -court and put into the hands of the court’s receivers, and procure from him such a written evidence of such extension of such expired reserved rights. This action upon their part was wholly unwarranted, and was an unwarranted inter*767ference with said property in the hands of such receivers, and subjected said McKinnon-Young Company and their agents and subsequent lessees and tenants to the summary remedy sought by the said petition. If the said McKinnonYoung Company had in fact a verbal agreement with the Wylly-Gabbett Company extending their right to take turpentine from said lands, such verbal agreement amounted to nothing more than a license, which license was terminated and expired at the time the court took charge of the properties of said Wylly-Gabbett Company for the payment of their debts, at the suit of their creditors ; and the Wylly-Gabbett Company, after their property had been taken from their custody and control by the court and put into the custody of its receivers at the suit •of its creditors, could not execute any valid conveyance or transfer thereof oir of any right or interest therein. Clark v. Guest, 54 Ohio St., 298, 43 N. E. Rep. 862; Thornton v. Washington Savings Bank, 76 Va. 432; Williams v. Flood, 63 Mich. 487, 30 N. W. Rep. 93; Jenkins v. Lykes, 19 Fla. 148.

It follows from what has been said that the orders and decrees of the court below appealed from in said cause should be, and are, hereby affirmed at the cost of the appellants. ■ _ ’

Hocker and Parkhill, JJ., concur; Shackleford, O. J., and Whitfield, J., concur in the opnion. Cockrell, J., disqualified.