42 Fla. 1 | Fla. | 1900
Upon the question raised in the opinion filed by Mr. Justice Carter, as to whether this court should decide the case upon the abstract of the record or upon the transcript, my view is that this court is bound under its rule 20 to decide the case upon the abstract of the record that has been prepared by the appellant’s counsel, and agreed by the appellees’ counsel to be a correct expose of the transcript of the record by his failure to file under said rule any exception questioning its correctness. I have no doubt of the authority of this court to prescribe such a rule, whose aim, to expedite the delayed business before the court, is most salutary. If this court has not the power to prescribe such a rule for the submission of causes before it, then it has no power to prescribe a rule for the submission of briefs and arguments in such causes, nor to impose the penalty of dismissal of a cause for failure to file briefs therein. Such abstract of the record makes out the following case: The appellees recovered judgment against the appellant in the Circuit Court of Hillsbor
The cause was referred! to- a master and the following agreed state of facts were reported by the master: That the said Thomas B. Smith is the head of a family residing in the State of Florida; that his place of residence was, on the day that the attachment was issued referred to> in the bill (an attachment in the suit having been levied on, the property preceding the rendition of the judgment), lying and being situate in the county of Hillsborough and State of Florida, and known as lot 10 of block 28 of Ybor City; that there were residing with him at that time on the said premises his wife, and eight children under the age of twenty-one years; that the building erected on said premises cost $2,650 when it was built; that the attached diagram represents the location and number of rooms in said building (the abstract fails to exhibit this diagram); that he together with his family occupy the rooms on said diagram marked “T. B. S.;” that various tenants occupy the other rooms as shown by the diagram ; that the said Smith, at the time of the levying of the attachment, owned no other property in the city of Tampa; that prior to said attachment he had resided in the city of Tampa for the space of two years, and at the time of the service of the attachment had no other house or home and was bona fide living upon the premises above described, and continuously resided thereon up to this time; that the land upon which the building is erected is a lot 70x95 feet and less than half an acre; that the building is a frame building"; that the said T. B. Smith does not keep a regular boarding or lodging house, but occasionally takes lodgers in certain of the upstairs rooms in said building, for the use-of which he
The case was heard on the pleading and the agreed state of facts, and the court on May 20th, 1895, made the following order in substance: That while the complainant was entitled to a homestead in the property, the. entire building and lot were not exempt, as the whole building was not used for homestead purposes, and allowed the complainant twenty days within which to select such part of the property as he desired for his residence and place of business, dividing perpendicularly. The twenty days having expired, and the defendant not having made such election, the court, on the 15th day of June, 1895, rendered a final decree ordering that the property be divided and that the south thirty-nine feet of the building with all vacant portions of said lot be set aside to the said Smith as a homestead, and the remainder of the building with the land upon which it is situated be declared subject to the execution levied upon it and be sold by the sheriff under the provisions of law governing execution sales.
From this last decree the appeal is taken and the following' errors are assigned:
First. The overruling of the demurrer of appellant to the cross-bill.
Second. The overruling of the exceptions filed by the appellant to the answer of the appellee.
Third. The granting of the decree dated May 20th, 1895.
Fourth. The rendition of the final decree dated June 15 th, 1895.
The first and second of these assignments will have to be treated as abandoned, since the appellant in preparing his abstract of the record has failed to- give
It must be observed in the outset that this provis
In order to be exempt, the property must have all the qualities necessary under the constitution to- exemption, but it must have nothing more. It must not exceed the half of one acre in the incorporated town, it m-ust be resided upon by the owner, and in addition to his residence he can have for himself a business house thereo-n. These are the qualities that necessarily stamp it as exempt, but it must not have upon it other improvements or buildings than such residence and busi-.ness house with' their appropriate appurtenances; if so, the part o-r parts thereof devoted to such other uses and purposes than those of the residing place and business place of the owner lose their quality of exemption. When a man undertakes to assert the status of ex-empto-r towards a given house, the legal use of such house that will support such status is that of residence for himself; permanent occupancy by others for pur: poses of revenue to himself is not a legal use that can be invoked to maintain the status of exemptor. And if such house is devoted to- both the legal and the illegal use, the latter will nullify the former and the exemption must fail. And, in order to preserve unim
Under this construction, according' to- my view, the court below erred in its order extending to' the appellant the right to select the part of the building that he desired to fix upon as his residence and business place, since by doing so he may have by his own act of selection imparted the quality of exemption to s.ome portion of the soil that had lost such quality by the presence on it or over it of non-exempt improvements, but, as the appellant failed to avail himself of the right of selection thus extended, this error is cured by the subsequent final decree that singles out the land or soil covered by the.south thirty-nine feet of the building together with all the vacant portions of said lot and adjudges it to be exempt as the homestead of the appellant, and adjudges the residue of the lot to be' subject to sale.
This disposition of the property made by the final decree takes in a part only of the soil that has been devoted to other uses than those recognized by the constitution in conformity with the views above expressed; its only vice is that it does not condemn all of the ground covered by the inhibited improvements, but as the judgment creditor expressly agreed to the propriety of the decree in the matter of the extent to which it went, there is no one who has any right to complain of the fact that it has not gone as far as it could with propriety have g'one, and my view, therefore, is that the decree of the court below should be affirmed.
The court decides this case upon the facts set forth in the statement prepared by Mr. Justice Mabry in connection with his opinion. That statement is substantially a copy of appellant's abstract of record, adding thereto two. of the decrees in full rendered by the court below. The abstract does not truly present the pleadings, issues and facts of the case as represented by the transcript of the record, and in deciding the case upon the abstract we are not passing upon the precise case presented to. and decided by the lower court, as I shall presently show. Under the laws of this State prior to September, 1895, it was uniformly held that this court “must not be expected to decide moot questions such as may be presented upon stipulations of counsel, for such course is liable to result in great abuse of public justice and may be unjust and prejudicial to a Circuit Judge, if it should happen that the counsel have presented a case and obtained a reversal or affirmance of supposed rulings which would surprise the judge when brought to his notice.” City of Jacksonville v. Lawson, 16 Fla. 321. And in many cases where the parties voluntarily agreed upon the evidence used in the court below, this court refused to consider it because it was not authenticated by the signature of the judge. Robinson v. Matthews, 16 Fla. 319; Richardson v. State, 28 Fla. 349, 9 South. Rep. 704; Pickett v. Bryan, 34 Fla. 38, 15 South. Rep. 681; Florida Central and Peninsular R. R. Co. v. St. Clair-Abrams, 35 Fla. 514, 17 South. Rep. 639. In the present case there is not even an agreement of the parties, that the abstract
I shall preface what I have to say by stating that under our written constitutions, and republican forms of government, the powers are vested in three co-ordinate, but separate and independent departments: the legislative, executive and judicial. The latter power is vested in the courts, and it is of the highest importance
• “The Supreme Court shall have the following powers, and action taken by it thereunder shall have the*27 force of law until otherwise provided by the legislature, to-wit:
1. To make, amend, annul or modify rules of practice or pleading of the Supreme or any other court as it may see fit, not inconsistent with law.
2. To make rules for the issuing and return of process in all courts, not inconsistent with law.
3. To regulate the manner in which judgments may be entered in all courts, such regulations to be not inconsistent with law.
4. To make and prescribe such new or altered forms of practice, pleadings and proceedings for all the courts of the State as it may think necessary.”
It will be observed that as to each power mentioned in this statute the court is limited to such-action as may not be inconsistent with law, except the fourth, and that relates only to prescribing forms, and gives no power whatever to' require abstracts as we have done by Rule 20. These powers are much more limited in their scope than those given by the statute referred to in Robinson v. Roberts, 16 Fla. 156, and the rule there upheld appears to have been a valid one at common law. That case is, therefore, no authority for sustaining the rule in the present case. The statute quoted is essentially a limitation upon the powers of the court in regard to making rules. The court has an inherent power of this nature, limited as I have stated, which cannot be divested by the legislature, and it is also' authorized by the common law to make rules. It would' be superfluous for the legislature to grant them the identical power they already possessed. By the legislation quoted the legislature has merely declared and confirmed the power already possesed, and perhaps extended it so far as other courts are concerned, but with limita
We are required to examine the record in every case properly brought under the statutes, and no authority is anywhere given us to disregard this requirement by adopting a general rule which requires-or authorizes' us to dismiss a case properly here under the statute for failure to file an abstract of the record not required by any statute or rule of the common law, and to decide the case upon the abstract without regard to and without examination of the transcript of the record. Writs of error and appeals in chancery are so highly favored that they are made matters of right; ample proceeding's are provided for getting the cases properly to this court, and where they come to us,in compliance with the statutes we are disregarding their plain requirements, intent and meaning' when we add other conditions and restrictions unknown to the statute or common law, or refuse to hear the case, not because the statute is violated, but because our additional restrictions are not complied with. It will be observed that the statute authorizing us to make rules does not
So long as the court judicially holds the rule to be valid, I must submit to its enforcement, but I cannot believe otherwise than that in adopting the quoted provisions the court has passed beyond the bounds of its rightful authority by disregarding valid statutes duly passed by the legislative department, and enforcing a mere rule of court that is at war with the letter and spirit of the legislation regulating appellate practice and procedure in this State.
In order to show that the abstract does not fully present the case decided by the Circuit Judge, I shall proceed to state facts certified to us in the transcript which either do not appear at all or are very imperfectly stated in the abstract. The bill alleged that the sheriff had advertised the lot to be sold under appellees’ execution on August 6, 1894, and a copy of the advertisement was made an exhibit. The appellees in their answer alleged that there was situated on the lot a very large building having five store houses below; that the second story was divided- into many rooms that had been constantly used as a boarding or lodging house, while the stores below, or a part of them, were rented to tenants who occupied same for business purposes. The alleged cross-bill is a part of the answer, though denominated therein a cross-bill, and it alleged that said stores were of considerable value for rental or business purposes, and that they were so constructed that they might easily and readily be partitioned so- as to set off to appellant a homestead and business house and leave the
The appellant’s answer to the cross-bill denied that the building situated upon the premises was capable of partition; alleged that the building could not be apportioned between the parties; that any division of the same would render the building useless to appellant; that there were tenp-.ooms in the second story, of which nine were occupied by appellant and his family; that said rooms were necessary for the comforts and convenience of the family; and that of the rooms on the first floor one was occupied by a minor son of appellant.
From the order referring the cause to a master it appears that replications were filed to the answers to the original and cross-bill. The master reported two agreed statements of facts, only one of which is referred to in the abstract. The other is as follows: “It is agreed that the building situated on the land claimed as exempt is of the following dimensions: Ninety-five feet on Fourteenth street and fifty feet on Sixth avenue, the
From this statement of additional facts shown by •the pleadings and evidence in the transcript, not incorporated in the abstract, it will readily appear that we are •not passing upon the propriety of the decrees rendered 'by the Circuit Judge under the same pleadings and facts .as they appeared to him when the decrees were ren
In the opinion prepared by Mr. Justice Mabry many decisions from other States are referred to-. As the language of our constitution upon the subject of homesteads differs from the statutes or constitutional provisions considered in any of the cases cited by him, it is not safe to follow them implicitly. It is quite sure that the broad language used in McDougall v. Meginniss, 21 Fla. 362, does not recognize limitations as to rural homesteads which the most of the courts of other States, particularly Wisconsin and Kansas, have found to exist in the provisions of their homestead laws, as to separate buildings or improvements, on the real es
The decree ought to> be affirmed.
(After stating the facts):
The lower court’s ruling on the demurrer to the cross-bill and the exceptions of appellant to the answer of appellees are assigned as errors, but the only question argued by appelant is “can the court subject any part of the premises to the judgment of the defendants either by a sale of the premises- or any part thereof?”
The abstract has not been excepted to by appellees and no question is raised by either party as to the validity of the abstract rule made by this court, and in obedience to it and previous repeated decisions of this court we must be governed by it. Allen v. Lewis, 38 Fla. 115, 20 South. Rep. 821. I entertain no doubt as to the power of this court to require a fair abstract of the transcript of the record in the case upon which errors are assigned and designed to be presented to this court, and when the parties agree upon the correctness of the abstract presented, there is no difficulty in disposing of the case thereon under a rule of court providing for the same. The construction heretofore placed upon the original abstract rule adopted by this court at its June term, 1895, does not preclude us from looking to the judgments and decrees of the lower court certified in the transcript, and while the abstract in this case gives the substance of the court’s decrees, we set them out in full
The agreed statement of facts shows that the appellant, Smith, was the head of a family residing in this State at the time of the levy of the attachment-in the case, and since, in a house as his home on a lot of land less than one-half acre in an incorporated city, and that the house was a frame building that could not be divided without destroying' it. The particular rooms in the building occupied by Smith and his family are undertaken to be represented by a diagram alleged to be attached to the accompanying agreed statement, but no such diagram is exhibited, but it does affirmatively appear that Smith bona fidd resided in the house on the lot as his home, and had no other, and that certain rooms upstairs were occasionally occupied by lodgers, and rooms dowmstairs were occupied by tenants. The court finds that the appellant occupied the building on the lot less than a half acre in extent as his home and was in fact entitled to a homestead exemption therein under the constitution, but it is also found that the house was so constructed as to give him more improvements than a residence and business house, and the finding establishes how this was done, vis: that five store rooms were on the ground floor, and the second floor was devoted to bed rooms occupied by Smith and his family, except one room that was vacant, and that four of the ground floor rooms were rented to' tenants. It also appears from the court’s finding that one of the ground-floor rooms was occupied by Smith.
If it is clear that the final decree of the court is wrong' in point of law, conceding' the correctness of the finding as to facts that might have been shown by the missing diagram independent of the express stip
The constitution (Art. X, Sec. 1) provides that “a homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars’ worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife when that relation exists; but no property shall be exempt from sale for taxes, or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner, and no- judgment or decree or execution shall be a lien upon the exempted property except as provided in this article.”
In Kansas the provision as to urban homesteads was that a homestead of “one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improve
WISCONSIN.
“A homestead consisting of any quantity of land not exceeding forty acres used for agricultural purposes, and the dwelling house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any town plot, or city, or village, or instead thereof, at the option of the owner, a quantity of lands not exceeding- in amount one-fourth of an acre, being within a recorded town plot, or city, or village and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of the State, shall not be subject to forced sale on execution, or any other final process from a court, for any debt or liability contracted” after a given date.
OKLAHOMA
“The homestead of a family not in a town or city shall consist of not more than one hundred and sixty acres of land, which shall be in one tract or parcel with the improvements thereon. The homestead in a city, town or village, consisting of a lot or lots, not to exceed one acre, with the improvements thereon; provided, that the same shall be used for the purpose of a home for the family; provided, also, that any temporary renting- of the homestead shall not change the character of the same when no other homestead has been acquired.”
It was held under these statutes that a house built apparently for business purposes, but as claimed by the
Decisions in Minnesota, Nevada, Arkansas, Michigan and Illinois, on their respective homestead exemption laws, tend to strengthen the view taken by the courts in Kansas, Wisconsin and Oklahoma. Kelly v. Baker, 10 Minn. 154; Umland v. Holcombe, 26 Ibid. 286, 3 N. W. Rep. 341; Jacoby v. Parkland Distilling Co., 41 Minn. 227, 43 N. W. Rep. 52; Clark v. Shannon, 1 Nev. 568; Goldman v. Clark, Ibid. 607; Gainus v. Cannon, 42 Ark. 503; Simpson v. Biffle, 63 Ark. 289, 38 S. W. Rep. 345; Orr v. Shraft, 22 Mich. 260; King v. Welborn, 83 Ibid. 195, 47 N. W. Rep. 106. But it was held in Dyson v. Sheley, 7 Mich. 527, that where the owner of a city lot built a double house upon it in such a way as to sho-w that he designed it for the use of two families, and not for one, and leased one part, occupying the other himself, the whole was not exempt. Hubbell
In Iowa a different view prevails, but it seems that no other court has followed it. There it is held that it was not the intention of the law-making power to exempt an entire building or house for whatever used, because some portion of it is used by the owner as the homestead, and that if under the same roof with the homestead there shall be a floor or floor room or rooms, which are not used by the family as a home, they are no more exempt than if under another roof, or on another and different portion of the lot. Rhodes v. McCormick, 4 Iowa 368, S. C. 68 Am. Dec. 663; Mayfield v. Maasden, 59 Iowa 517, 13 N. W. Rep. 652; Smith v. Quiggans, 65 Iowa 637, 22 N. W. Rep. 907; Johnson v. Moser, 66 Iowa 536, 24 N. W. Rep. 32; Arnold v. Gotshall, 71 Iowa 572, 32 N. W. Rep. 508.
The Alabama court has been regarded .as holding that the test of exemption is. the principal use to which the property is devoted. It is said in one opinion that “where the trade adaptation and use of a building is incidental or secondary only to its habitation as a dwelling — where the chief use of the structure is that of a home for the owner, and some part only not essential to this end is.fitted up and used as a shop, an office or salesroom — it is a homestead; but when this state of facts is reversed, and the residence feature is only auxiliary to the business use — where only a relatively small part of the building is devoted to the uses, of habitation, and the chief adaptation and use are those of business — the building is not a homestead, even though the occupant have no other home, and uses this for all the purposes of living.” Garrett v. Jones, 95 Ala. 96, 10 South. Rep. 702; Turner v. Turner, 107 Ala. 465, 18 South Rep 210.
In Texas they have an express constitutional limitation in reference to urban homesteads, that they shall be used for the purposes of a home, or as a place of business to exercise the calling or business of the head of the family. The provision reads: “The homestead in a city, town or village shall consist of lot or lots not to exceed in value $5,000 at the time of their designation as a homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place of business to exercise the calling or business of the head of the family.” It has been carefully considered in several cases brought before the courts of that State; among them are the following: Shyrock — Rowland v. Latimer, 57 Texas 674; Keith v. Hyndman, Ibid. 425; Wynne v. Hudson, 66 Texas 1, 17 S. W. Rep. 110; Bowman v. Watson, 66 Texas 295, 1 S. W. Rep. 273; Malone v. Kornrumpf, 84 Texas 454, 19 S. W. Rep. 607; Forsgard v. Ford, 87 Texas 185, 27 S. W. Rep. 57. In the last case cited it appeared that a two-story house eighty-
In construing our constitution in reference to- a rural homestead this court said, in McDougall v. Meginniss, 21 Fla. 362, that “when a party resides on the land as a homestead, and the law is silent as to’ how much of said land, other than that occupied by his house, he shall use or cultivate, or in what manner he shall use it, or that he shall use or cultivate it all, we do’ not feel at liberty to amend the 'constitution of the State by the .interpolation of further provisions therein regulating the manner or extent of the use of the homestead, or declaring that a non-user of a part while he remains on the land is an abandonment of that part which takes from it the benefit of homestead exemption. In our view the owner is only required by the constitution to live on the land, and the whole one hundred and sixty acres is exempt.” A different view announced by Judge Bradley in Greeley, Assignee, v. Scott, 2 Woods, C. C. Rep. 657, construing the same constitution, was disapproved.
As I understand the decisions similar to' those cited from Wisconsin and Oklahoma, the leading principle is
It is clear to my mind that our statutes providing for the setting apart of homesteads (sections 1998, 1999, 2000 and and 2001 Revised Statutes) do not contemplate the cutting up and division of an entire indivisible building situated on exempt real estate, nor has such power been conferred by statute upon courts of chancery. I think that when a homesteader places upon the exempt half acre improvements or buildings detached from and other than the residence and business .house, or when improvements are so placed that they constitute separate improvements from the residence or business house, they, together with the land supporting them, become subject to execution sales, but such is not the case before us.