48 Fla. 297 | Fla. | 1904
This is an appeal from an order of the Circuit Court of Pasco county denying a motion made by Ray, the appellant, to vacate and set aside a writ of assistance granted by said court March 16, 1903, by which the sheriff was directed to put Trice as receiver, the appellee, in possession of certain lands in Pasco and other counties which had been purchased by him at a public sale, made in pursuance of a decree in equity rendered by said court in a suit for foreclosure wherein the St. Petersburg State Bank, a corporation, as trustee, was complainant, and Globe Phos
It appears from the transcript that appellee gave directions to include therein the original and amended bills of complaint, the answer of the Globe Phosphate Company,, all of the testimony taken by the master in chancery and exhibits filed therewith, and also certain designated affidavits, which the directions recite were filed in September, 1903, and refiled October 11, 1903. The direction's also contain a general order to the clerk to “copy in full all other papers and records in this cause not specifically designated either in the application of the complainant or the defendants.”
The written directions of appellee contemplated the insertion in this transcript of the entire proceedings, including the testimony in the foreclosure suit which culminated in the decree of sale under which appellee purchased and upon which the writ of assistance was based. These proceedings were very voluminous, and we have evidence that a transcript embracing them would cost at least $700 more than the one before us. The decree in that case could not be reviewed in this proceeding even if appellant had been a party thereto (Mann v. Jennings, 25 Fla. 730, 6 South. Rep. 771; Lenfesty v. Coe, 26 Fla. 49, 7 South. Rep. 2), and it is quite evident that even if the record in that case was properly a part of the record in this a very large part of that record would have no bearing upon the questions presented here which are confined to the propriety of the order denying the motion to vacate the writ of assistance and to restore property taken from appellant’s possession under that writ. An appellee should not incumber the record with useless matter and thereby not only impose upon the court the labor
The appellee’s directions also included certain affidavits already mentioned, but the clerk omitted them from the transcript. These affidavits appear to have been filed October 2, 1903, the day Ray’s motion was denied. They were filed in the proceeding begun by the motion, but there is nothing to show that they were before the judge as evidence at the time he ruled on the motion. On the contrary the judge certifies that they were not before, or read by him at that time; that his ruling "was based entirely upon the showing made by the said motion and affidavits filed by the said Walter Ray and was not based upon the affidavits marked filed on the same day by the parties representing John Trice and others.” He further certifies that the affidavits were not filed “until after the court had indicated its ruling upon the mo
The certificate of the clerk is not in the form prescribed by the rules, but appellant has asked for leave to supply a proper one. We think, under the circumstances disclosed in the record, leave should be given, therefore appellant will be permitted to append to the transcript a certificate in the form prescribed by the rules, serving a copy upon appellee, within ten days from the date this opinion is filed.
The fourth and seventh grounds of the motion to dismiss insist that parties to the foreclosure suit, and William Hocker as trustee by substitution for the St. Petersburg State Bank, should have been made parties appellee to this appeal. The writ of assistance was obtained in the name of appellee, who, as stated, was the purchaser at the foreclosure sale, and the parties to the foreclosure suit were not parties to, nor interested in the motion made by appellant to vacate the writ. No one but Ray and Trice, receiver, the purchaser at the sale, were parties to or interested in the matter of that motion. This being true we do not think there is any defect of parties by reason of the omission of the parties to the foreclosure suit.
It appears from the record that the writ of assistance was granted upon the petition of William Hocker “as trustee by substitution for the St. Petersburg State Bank, removed.” The foreclosure suit was instituted by “St. Petersburg State Bank, a corporation, as trustee,” and the decree of foreclosure was entered in the same name. It does not appear that William Hocker was substituted for John Trice as receiver, the purchaser at the foreclosure sale, but that he was substituted as trustee in the stead of St. Petersburg State Bank, trustee, who had been removed, and therefore merely occupied the position of complainant in the foreclosure suit. He merely asked that the writ of assistance issue in the name, of Trice, receiver, the purchaser, and the writ was so issued. Hocker was not made a party to the writ of assist
The sixth and eighth grounds of the motion to dismiss insist that the entry of appeal is so defective in its statement of the parties against whom the appeal is taken that its record constitutes no notice to appellee and the parties to the foreclosure suit. We hold that the parties to the foreclosure suit are not necessary parties to this appeal, and this disposes of the objection so far as they are concerned.
The entry of appeal is somewhat awkwardly worded. It states that appellee was the only party interested in appellant’s motion to vacate the writ of assistance, but the language is somewhat ambiguous as to whether appellee is intended to be made a party to the appeal. Without deciding whether the entry of appeal is so defective that its record constitutes no sufficient notice to appellee as contended, we are satisfied that his motion to dismiss by reason of the insertion therein of the 1st, 2nd, 3rd and 5th grounds, constitutes a general appearance on his part upon the principle announced in Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 South. Rep. 670, and Dudley v. White, 44 Fla. 264, 31 South. Rep. 830, that “where a defendant appears specially for the purpose of presenting the question of jurisdiction of the court over his person, he must restrict his motion to the ground of such jurisdiction and must not include therein some other ground that recognizes the jurisdiction of the court over his person and amounts to an appearance in the cause by him, and if he does so, the motion will be held to be a general appearance, notwithstanding the fact that it purports to be made in pursuance of a special appearance.” In this case the motion is not even made in pursuance of a special appearance and, therefore, the reason is stronger for holding it to be a general appearance.
The motion to dismiss will be denied, and appellant will be permitted to fiíe a proper certificate to the transcript as above indicated. Appellee will be required to file his brief
Hocker and Shackleford, JJ., being disqualified, took no part in the consideration of this matter.
Taylor, C. J., and Whitfield and Cockrell, JJ., concur.