142 Fla. 290 | Fla. | 1938
Lead Opinion
After argument on the rehearing granted in this case, Mr. Chief Justice ELLIS, Mr. Justice WHITFIELD and Mr. Justice CHAPMAN are of the opinion that the judgment of affirmance entered by this Court in this cause on December 22, 1937, should be adhered to, while Mr. Justice TERRELL, Mr. Justice BROWN and Mr. Justice BUFORD are of the opinion that the said former holding of the Court should be receded from and the decree of the Circuit Court reversed. When members of the Supreme Court, sitting six members in a body and after full consultation, are permanently and equally divided in opinion as to whether the judgment of the Supreme Court should be adhered to on rehearing and the previous judgment of the Supreme Court should not be disturbed; therefore, it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung,
ELLIS, C. J., and WHITFIELD, TERRELL, BROWN and CHAPMAN, J. J., concur.
BUFORD, J., concurs specially.
Concurrence Opinion
I first participated in this *302 case after rehearing was granted and the oral argument was presented by counsel for the respective parties.
After examining the record in the cause and the opinions heretofore filed, I am in accord with the views expressed by Mr. Justice BROWN and concurred in by Mr. Justice TERRELL and Mr. Justice BUFORD.
Concurrence Opinion
I agree to the foregoing order but with the reservation that I think the Court should dispose of no case by a three-to-three order when a change in the personnel of the Court is in immediate prospect and that the parties to the cause should be permitted to present the case after such change in the Court shall have occurred.
Dissenting Opinion
After argument on the rehearing, granted in this case, I am inclined to the view that the position taken by us in our original opinion in this case is erroneous, in that it would result in the establishment of a rule in this State which would penalize a party for applying for the removal of a cause pending in a court of this state to the federal court and would violate the rule of comity between state and federal courts. I still agree with the general statement made by Mr. Justice CHAPMAN in his opinion upon the original hearing, that it is within the power of a state court to determine what constitutes a general or special appearance in the courts of the State. However, I cannot concur in the further statement that this Court is committed to the ruling laid down in said original opinion by the decision in the case of State ex rel. Neel v. Love,
In the case of State ex rel. Neel v. Love, supra, the petition for removal from the state court to the federal court was denied because the petition was filed after the time fixed by the statutes of the State of Florida for pleading and when the petitioning party was in default. In the case at bar the petition for removal was timely filed, on a special appearance for that sole purpose, when the petitioning parties were not in default. In the Neel case, the cause was not removed to the federal court. In the instant case the petition for removal was granted, the cause was removed and was subsequently remanded to the state court by the district judge.
The opinion in the case of State ex rel. Neel v. Love, supra,
cited as authority, Britton v. Beltzhoover,
"We are therefore at the threshold confronted with the proposition whether an appearance in a state court for the sole purpose of taking the statutory steps for the removal of a cause to the federal court — the defendant doing no more or further than that — shall be deemed such an appearance that, when the cause is remanded, the defendant is *296 then in the said State court without necessity of valid process.
"Since the right of removal to a federal court is one granted by federal statutes under the Federal Constitution, and which therefore becomes a right supreme to that which in anywise might be attempted to be provided to the contrary by any state statute or rule of procedure, 'it is extremely desirable,' as was said in Railroad Co v. Lyon,
"It was not intended to be held otherwise in Britton v. Beltzhoover,
I think the opinion of the Supreme Court of Mississippi above quoted from indicates the proper rule which should be followed by the Supreme Court of this State, and which, as shown by the very fair and comprehensive opinion of Mr. Justice CHAPMAN, appears to be followed by a majority of the state courts. See also Goldey v. Morning News Co.,
For the reasons above stated I am of the opinion that our former holding on this point in this case should be receded from and the majority rule as set forth in McCoy v. Watson, supra, adopted and applied.
*298TERRELL and BUFORD, J. J., concur.
Addendum
In Michigan Central Railway Co. v. *292
Mix,
In that case the opinion states:
"The contention that filing the petition for removal to the federal court was equivalent to the entry of a general appearance is obviously unsound. General Investment Co. v. Lake Shore Ry. Co.,
In other cases cited a Federal question was involved, or, if a Federal question was not involved, a Federal rule of procedure was followed, and not a State law, under the then controlling precedent of Swift v. Tyson, 16 Pet. 1, which was overruled in Erie Railway Co. v. Tompkins, decided by the United States Supreme Court, April 25, 1938, holding that State decisions as well as State statutes should be followed in the United States Court where the jurisdiction of such courts depends upon diversity of citizenship, of the parties litigant. See also Floyd Hudson v. Moonier, U.S. Supreme Court, May 23, 1938. See Employees Corporation v. Bryant,
In this case a citizen of Florida sues in a State court citizens of another State together with Ohio corporations and Florida governmental corporations for an accounting and payment on a contract for professional services rendered in Florida.
The non-resident defendants include in their petition for removal of the cause to the United States District Court, an allegation that the joinder of certain named defendants in the cause is fraudulent and made for the purpose of hindering and embarrassing the Petitioners in the removal of this action to the United States District Court. This allegation goes to the right to remove the cause to the United States District Court and not to the service of process on the defendants.
The cause was remanded to the State court and the order of the State court sustaining objections to the motions of non-resident defendants to quash the service of State *294 process on them was based upon a decision of this court which is controlling in State courts in the trial causes arising upon local contracts when no Federal laws have been violated.
The cause being remanded in the discretion of the U.S. District Court there can be no penalizing of the complaining defendants.
ELLIS, C. J., and CHAPMAN, J., concur.
Addendum
On a former rehearing in this case, the same was, on October 26, 1938, denied by an equally divided Court.
After consideration of the extraordinary petition for rehearing filed and granted in this case in November, 1938, a majority of the Court have reached the conclusion that the position taken by us in our original opinion in this case is erroneous, in that it would result in the establishment of a rule in this State which would penalize a party for applying for the removal of a cause pending in a court of this State to the federal court and would violate the rule of comity between state and federal courts. We still agree with the general statement made in our original opinion (appearing in
In the case of State ex rel. Neel v. Love, supra, the petition for removal from the state court. to the federal court was denied because the petition was filed after the time fixed by the statutes of the State of Florida for pleading and when the petitioning party was in default. In the case at bar the petition for removal was timely filed, on a special appearance for that sole purpose, when the petitioning parties were not in default. In the Neel case, the cause was not removed to the federal court. In the instant case the petition for removal was granted, the cause was removed and was subsequently remanded to the state court by the district judge.
The opinion in the case of State ex rel. Neel v. Love, supra,
cited as authority, Britton v. Beltzhoover,
"We are therefore at the threshold confronted with the proposition whether an appearance in a state court for the sole purpose of taking the statutory steps for the removal of a cause to the federal court — the defendant doing no more or further than that — shall be deemed such an appearance that, when the cause is remanded, the defendant is then in the said state court without necessity of valid process.
"Since the right of removal to a federal court is one *300
granted by federal statutes under the Federal Constitution, and which therefore becomes a right supreme to that which in anywise might be attempted to be provided to the contrary by any state statute or rule of procedure, 'it is extremely desirable,' as was said in Railroad Co. v. Lyon,
"It was not intended to be held otherwise in Britton v. Beltzhoover,
We think that the opinion of the Supreme Court of Mississippi above quoted from indicates the proper rule which should be followed by the Supreme Court of this State, and which, as shown by the very fair and comprehensive opinion of Mr. Justice CHAPMAN, on the original hearing herein, appears to be followed by a majority of the state courts. See also Goldey v. Morning News Co.,
For the reasons above stated a majority of the court are of the opinion that our former holding on this point in this case should be receded from, and the majority rule, as set forth in McCoy v. Watson, supra, adopted and applied.
Our former judgment of affirmance is therefore vacated, and the order appealed from is now reversed.
TERRELL, C. J., and BROWN, BUFORD and THOMAS, J. J., concur.
WHITFIELD and CHAPMAN dissent and adhere to our original opinion.
Addendum
The petition for rehearing filed by appellee in this case attacks, as being incorrect, the statement in the Court's opinion to the effect that: "In the case at bar the petition for removal was timely filed, on a special appearance for that sole purpose."
Appellee contends that the above statement is incorrect because the special appearance appearing in the record shows that it was not filed for the sole purpose of removing the case to the Federal Court. The appearance filed is entitled "special appearance." The exact language is "Comes now H.C. Rorick" and others, "by Alec Baker and Mitchell D. Price and Charles W. Zaring, their attorneys, and file this their special appearance herein pursuant to Section 4279, C. G. L. 1927, and said parties also appear specially, for the purpose of removing this cause to the United States District Court, in and for the Southern District of Florida, Miami Division, not admitting the jurisdiction of the Circuit Court of the Twenty-second Judicial Circuit of Florida, in and for Broward County, but denying and disputing the same."
On the same day that this special appearance was filed, the petition for removal was also filed.
It is further stated that the Court overlooked the fact that there was no compliance whatever with said Section 4279, C. G. L., by appellants and that under the provision *303 of said statute, such noncompliance constitutes a general appearance.
Section 4279 reads as follows:
"4279. Special appearance; operation as general appearance. — When any special appearance has been filed by a defendant in any cause in any of the courts of the State of Florida upon the proper return day in such cause, such special appearance shall operate as a general appearance, unless the defendant so filing such special appearance shall file a statement of the grounds of such special appearance and his motion to quash at the time of filing such special appearance or (on) not less than ten days before the next succeeding rule day. In event such statement of grounds and motion shall not be filed at the time of the filing of such special appearance, then such defendant shall deliver a copy of such statement and motion to the opposing party or his attorney not less than ten days before the next succeeding rule day. (Ch. 11971, Acts 1927, Sec. 1.)
In McCarthy's Annotation of the Florida Chancery Act, 2nd Ed., page 24, it is said:
"Chapter 11971, Acts of 1927 (Sec. 4279 C. G. L.) does not seem to be applicable to equity cases.
See Rorick v. Stilwell (supra) 16th headnote."
The case of Rorick v. Stilwell thus referred to is reported in
"But persons who are named as defendants in a suit in equity where process has been issued and returned as served upon them, when in truth and in fact no such service has in legal effect been made, although shown by the return, have the right to call such lack of jurisdiction to the attention of the Court by specially appearing in the cause and moving to set aside or vacate the service of process *304 when it appears of record in the cause as a virtual basis for the Court to assure that it has lawfully obtained jurisdiction over the person of the defendant.
"And so long as the special appearance entered, and the motion filed pursuant thereto, whether filed personally or through counsel in that behalf, is confined solely to jurisdictional matters and asks nothing of the Court except that the Court determine for itself its own want of jurisdiction under the law, the special appearance entered and motion so filed must be regarded as limited in character and asper se conferring no jurisdiction on the Court to proceed to trial on the merits. In every case where it is claimed that service of process has been waived that fact ought to be clearly established and shown on the record. Anderson v. Agnew, 38 Fia. 30, 20 So. 766.
"If no legal service has in fact been had, and a special appearance designed to raise that objection, and limited to such object alone, is filed, it can not be considered a general appearance nor does it in and of itself confer any jurisdiction over the person of the defendant interposing it. See Read v. Rousch,
"In this case we are dealing with a proceeding in equity, not at law. Our statute provides with reference to equity cases that in the absence of process of law or rules of practice in this State, the rules of practice in the courts of equity of the United States, as prescribed by the Supreme Court thereof, shall be the rules of practice of the Courts of the State when exercising equity jurisdiction, and when the rules of practice so directed by the Supreme Court do not apply, the "practice" of the Courts shall be regulated by the high Court of Chancery of England. Farnell v. Forest Investment Co., 74 So. 216,
"In Florida there is no special statute or rule of Court prescribing any particular method for testing the sufficiency of the service of summons in Chancery, so the Federal practice is permissible.
"The rule in the Federal Court is that a motion to set aside the service, or a motion to quash the return, accompanied by a special appearance for that purpose is the proper method of testing the sufficiency of such service, unless the defendant prefers to disregard it and subsequently to raise the objection upon an appeal from the decree or to resist the execution of the decree as void. American Bell Telephone Co. v. Pan. Elec. Tel. Co., 28 Fed. 625; Romaine v. Union Ins. Co., 28 Fed. 625. And so is the English Chancery Rule which would apply if there were no Federal rule. 1 Daniels Chancery Practice, 8th Ed., 289."
It thus appears that the inclusion in the special appearance of the language "and file this their special appearance herein pursuant to Sec. 4279 C. G. L 1927" was inappropriate and ineffective surplusage in a special appearance to file petition for removal, and was considered by this Court as an inadvertent and redundant statement which did not detract from the language immediately following:
"And said parties also appear specially for the purpose of removing this cause to the United States District Court." etc.
It was not necessary for the appellants to appear for any purpose other than the removal of the cause to the United States District Court, at the time the special appearance for that purpose was filed. They did nothing more than this until after the remand of the cause.
Furthermore, after the special appearance for the purpose *306 of removing the cause to the United States Court, an order of removal was made. The effect of this order stayed all proceedings in the State Court until after the cause was remanded. After such remand appellants did the in the court below their several special appearances and motions to quash service of summons and return of summons upon them, supporting their motions with affidavits, which appears to be the practice which was approved in the case of Rorick v. Stilwell,supra.
For these reasons a majority of the Court are of the opinion that the inclusion in the appellants' special appearance of the words: "and file this their special appearance therein pursuant to Sec. 4279 C. G. L. 1927" did not render such special appearance a general appearance. This is the only ground of the petition for rehearing which we think calls for any discussion.
The petition for rehearing is accordingly denied.
TERRELL, C. J., BUFORD, CHAPMAN and THOMAS, J. J., concur.
WHITFIELD, J., dissents.