16 Fla. 708 | Fla. | 1878
delivered the opinion of the court. -
This is a case under the laté Code.
Appeals from the judgment rendered herein are prosecuted by the Jacksonville, Pensacola and Mobile Railroad-* Company, and by Milton S. Littlefield.
The appeal of the Jacksonville, Pensacola and Mobile-Railroad Company is from the judgment rendered against it in behalf of the State, as well as that rendered against it in behalf of the Trustees of the Internal Improvement
We make no statement of the case in detail. Our views of the facts and of the case will appear as we treat and dispose of each appeal.
The decree in behalf of the State in this record is not by virtue of its relation of trustee for bona fide purchasers and. holders of the bonds of the State of Florida exchanged with this company for its bonds and sold,’biit it is based upon, the fact that the State of Florida has in possession the bond® of the Jacksonville, Pensacola and Mobile Railroad 'Company, upon which that company has failed to pay in rerest The right of the State as trustee can exist only upon clear proof oí the existence of bona fide purchasers of the State bonds. The State as the simple holder of the company bond is entitled to no judgment against the company. The fact which makes any equity operative in her behalf must exist in connection with the fact that the State holds the company bond. This court considered the general nature of the bonds which are the foundation of the State’s claim here in the cases of Holland vs. The State of Florida, IS Florida, 534, and the case of the State of Florida against The Florida Central Railroad Company, 15 Fla., 691.
In the case of Holland vs. The State of Florida we said, “A careful and strict examination of this statute will show that the State of Florida was to occupy two distinct and different relations to the holders of the' State bonds and to the company. The first relation was that of primary,debtor to the holder of the State bond under and by virtue of the obligation of this bond, and also of mortgage creditor of the company, under and by virtue of the bond of the company. The right of the State, viewed in this light, was to be simply that of a mortgage creditor of the road, and its liability to the holder of the State bond was that of a simple bond debtor. In this relation the holder of the State
The State of Floi’ida in this case, in addition to its relar tion as trustee for the bona fide purchasers and holders of its bonds, has also a residuax’y interest in the Internal Improvement Fund, as well as an intex'est in its management and disposition through her agents, the Trustees.
The subject-matter of this action, so far as it is common to the Trustees of the Internal Improvement Fund and the State of Florida, is a line .of railway extending from Quincy
The r&m here in question, the property of the J., P. & M. Co., is not claimed by the plaintiff to embrace the line of. road extending from Jacksonville to Lake City. This being so, no part of the property is in the territorial jurisdiction of the Circuit Court of the Fourth Judicial Circuit. That court, under the Constitution of the State, has no power to decree a sale by its officers of property not within its territorial jurisdiction. . (15 Fla., 285.) The power of the Circuit Court, therefore, in this case did not extend beyond a decree establishing the rights and defining the liens of the State am. of the. Trustees, as we have stated them. That court should have adjudged two liens existing in behalf of the Trustees. One as to the road from Tallahassee to St. Marks for the balance of the purchase money due thereon, the other as to the road from Quincy to Lake City for balance of the purchase money due thereon. In such a ease the right of the vendor is to a sale of each road separately, on non-payment of what is due on it. lie cannot sell both estates on non-payment of the aggregate amount of the liens, and any decree establishing the lien of the State should conform to the law upon this subject. 8 Eng. L. & Eq., 46; 10 Met., 172.
As against the J., P. & M. Co., the State had a further lien of the character given by the statute as to the road from Quincy to Chattahoochee.
In the case of the State, if the relation of primary debtor had been constitutional, to conform to the statute the court would simply have passed a decree establishing the amount of principal and interest due on the company bonds ; the default of twelve months in the payment of interest; the amount of the State bonds outstanding, and would have made such decree as to sale as was authorized by the statute. When, however, the only right of the State is as trus
The decree now before us establishes the debt of the company to the State, and a default of twelve months in payment of the interest due thereon, and passes what is a judgment quod recuperet for the interest. For these reasons this ’ judgment in behalf the State must be reversed.
It only remains to consider what is the proper disposition1 to be made of the case of the State in view- of the pleadings' and proofs herein. Should the order be to dismiss absolutely or without prejudice to the right of the State as trustee, or should it be, as suggested by counsel, for the State, to remand, with direction to modify, the decree, and for further proceedings in the court below to enable it to give full relief to the holders of the State bonds? We cannot direct a modification of the decree, among other reasons, because that can be proper only in the event that the proof justifies such order, and there is no such satisfactory proof liere as • should be required. The only proof in this record that there is a bona fide purchaser of a State bond in existence ' is this sentence in the testimony of Milton S. Littlefield t “ I sold and delivered to S. W. Hopkins & Co. three thousand bonds of the State of Florida of $1,000 each, which were received in exchange for the railroad company’s bonds, numbering from No. 7 to No. 3,000 inclusive.” Under the
As to the suggestion in reference to calling in the holders of the State bonds. We have no satisfactory proof that there are such. We cannot, looking to this record, say that such is their wish, or a probability that such will be their act. These parties' may claim that they have the right to disavow the act of the State in this proceeding; that they are not bound thereby, and will seek their remedies, and assert their own rights as they view them, elsewhere. Again, this action has been pending for over six years, and this record discloses no attempt of such persons, if any such there be, to corhe into this suit. While all this is true, and the strict rule of practice would justify an order of dismissal absolute, still we think we are justified in doing no more than directing the bill on the part of the State as against the J., P. & M. Co., so far as it claims a lien against said road, to be dismissed without prejudice to the right of the State as trustee to assert in a new suit alien subordinate to the lien of the Trustees of the Internal Improvement Fund as to the several roads extending from Quincy to Lake
The State having joined as co-plaintiff with the Trustees in this suit, and having admitted their prior lien as to ‘the road from Tallahassee to St. Marks and from Quincy to Lake City and branch to Monticello, and such lien having been established by the judgment of the Circuit Court with its consent, the order dismissing the bill’should not leave that an open question.
The J., E. & M. E. E. Co. appeals also from that portion of the decree of August 20, 1875, wherein it is adjudged by the court that one hundred and three bonds, some of the Pensacola and Georgia Eailroad Company and some of the Tallahassee Eailroad Company, were the property of the Trustees of the Internal Improvement Fund as against said company, and that when recovered these bonds should be cancelled. • This record discloses that on the second day of April, A. D. 1874, there was a final judgment rendered against this company for $661,845.55-100.
This judgment of August 20, 1875, must be reversed as to the J., P. & M. Co., in so far as it adjudges the one hundred and three bonds to be the property of the Trustees of the Internal Improvement Eund, subject' to be cancelled. This, however, to be without prejudice to any right which said Trustees may have, or to any application they may make to reform or change, upon proper proceedings, the judgment of April 2, 1874.
We next examine the appeal of Milton S. Litttlefield. Plaintiffs allege in their original complaint that “ they have been informed and believe that Milton S. Littlefield has in his possession and control a lai;ge number of the first mortgage bonds of the said Pensacola and Georgia Eailroad Company, for the payment of which- the balance of said purchase money is, when collected, made applicable bylaw, and that the defendant, M. D. Papy, holds another large number of the last aforesaid bonds as the agent of the said Eailroad Company, or of the said defendant, George W. Swepson, all of which said last mentioned bonds equitably belong to the Trustees of the Internal Improvement Eund.”
The prayer of the original complaint was for judgment against the J., P. & M. E. E. Oo. for the sum of $572,000 and costs, and for ah injunction restraining M. D. Papy and Milton S. Littlefield from parting with the possession and from disposing of, or in any manner incumbering the bonds “ now in their possession, custody and control, either as trustee or otherwise,” until • the further order of the court. There was an injunction awarded against Papy and Little-field in accordance with the prayer of the bill, as to any of the “ bonds of the Pensacola and Georgia Eailroad Company.”
The summons issued upon the filing of this complaint was served upon Milton S. Littlefield on the 20th of March, 1872.
The record contains an acknowledgement by M. S.. Little-field of service of notice-by the plaintiffs of their intention to apply for final judgment against him, and on the day named in this notice there was a final judgment, this final judgment reciting that defendant, Milton S. Littlefield, had been duly served with process in this action, had not interposed any defence thereto, adjudged as against him that the one hundred and three bonds of the. P. & G. & T. R. R„ Companies were the property of the Trustees, that the plaintiffs should cancel them upon receiving possession of them, and perpetually enjoining Littlefield from asserting any right or title to them.
From this statement of the case of appellant Littlefield, it appears that the judgment rendered against him was for default for want of “ defencethat the original complaint was filed March 22, 1872; that he was served with summons on the 20th of March, A. D. 1872; that on the22d of June, A. D. 1872, an amended complaint was filed of which no .notice was given him ; that he never entered an appearance
Does an appeal lie from such a judgment in this State 1 Under the original text of the Code, as interpreted by the courts of New York, an appeal did not lie from a judgment by default. (4 Com., 315; 8 Barb., 351; Voorhee’s Cod,e 668; ib., 665d.) Under the English system an appeal did not lie from a decree pro confesso, and such was the rule in New York, Maryland, New Jersey, and Vermont. (2’ Smith’s Chy. Practice; 54 N. Y., 27; 8 Wend., 219 ; 25 Wend., 245 ; 12 John., 493 ; 1 Beas., 353 ; 1 Bland, 12-35 ; 15 Vermont, 378.) In this State-a defendant anterior to the Code could appeal from a decree pro confesso, and in one case-it was held that the appeal would’only bring up for review the proceedings prior to the default. (4 Fla., 11.) The difference in the rule as stated by the court was occasioned by the fact that in England and New York an appeal might have been taken from interlocutory orders and decrees, while in this State no such appeal could be taken. Having, failed to take an appeal from an interlocutory order when it could be done, the party in the English courts was considered as acquiescing in the propriety of the decree, and a subsequent default would debar him from bringing any question in the cause before the appellate tribunal. Under our first statute, however,, an appeal could only be taken from a final decree, and for this reason the court, contrary to the rule in England and New York, held that an appeal^ could be taken and that every question passed upon by the Chancellor, and the regularity of the proceedings therein, prior to the default, could be reviewed. (4 Fla., 14.) This statute was afterwards modified (A. D. 1853,) and appeals from interlocutory orders wore allowed. This court, in the .case of Freeman vs. Timanus,. (12 Fla., 403,) held that this-last statute did not change the rule, as it provided that & postponement of the appeal until- final decree should not be*
Upon such appeal we do not think that the appellant can do more than question the sufficiency of the case made by the plaintiff of which he has had notice. To this extent he has made default and to such extent must he suffer, but the plaintiff cannot take a,ny judgment he pleases. The judgment must conform to the cause of action stated against him. (22 Wis., 438 ; 14 Wis., 16; 1 Cal., 97; 3 Scam., 349 ; 1 C. Green, 271 ; 6 Mass., 499 ; 1 Morris, 290 ; 4 R. I., 114 ; 3 Rev., 385 ; 9 Iowa, 201 ; 30 Ga., 503 ; 9 Paige, 322 ; 148 Ark., 209; 2 Ark., 26.) In this case the defendant Littlefield received notice of the original complaint; he did not receive notice of the amended complaint. If the original complaint sets up a cause of action, then a judgment conforming thereto will not be disturbed here. If, however, the original complaint sets up no cause of action, and the judgment is based upon the amended complaint of
Plaintiffs in the original complaint alleged “ that defendant Littlefield had in his possession and control a large number of the first mortgage bonds of the said Pensacola and Georgia Railroad Company, for the payment of which :the balance of said purchase-money is, when collected, made ¡applicable by law.” This allegation, instead of making a •case against defendant Littlefield, sets forth plainly that he ■.is entitled to a part of the moneys which the plaintiffs seek ■ to recover. In the amended colnplaint, of which Littlefield •received no notice, the plaintiffs alleged that the J., P. & .M. Co. or Littlefield held by purchase one hundred and three of the outstanding P. &"G. R. R. Company bonds, purchased under an agreement that the same should be sur,-rendered for cancellation to said trustees. Upon this allegation the final judgment was based. Of this claim Littlefield .¡received no’ notice. The amended complaint making it was •filed three months after the original, without notice or with-cut leave of the court. Under these circumstances this judgment must be reversed. Unless this is the rule, the plaintiff in a bill seeking a specific performance of some ..simple contract might, by an amendment without notice and without leave, change the bill into one seeking a foreclosure of a mortgage and have a decree for the sale of the ■entire estate of the defendant. It cannot be said that defendant has confessed a claim of which the record discloses ■no notice to him. His only protection in such cases is notice of the claim for which judgment is demanded, and the court-should only grant a judgment when -the record discloses this fact affirmatively. We do not think that either party should be prejudiced by this proceeding. While we doubt whether an order directing the bill to be dismissed as ;to defendant Littlefield would prejudice any right of the ¡trustees ¡against him, still to avoid any difficulty the order
This cause having been submitted at a previous term of this court, after argument by counsel for the State of Florida and for the Trustees of the Internal Improvement Fund,, the plaintiffs, as well as after argument by counsel for defendants, the Jacksonville, Pensacola and Mobile Railroad Company and Milton S. Littlefield, and the transcript of the record of the judgement aforesaid having been seen and inspected, it is considered by the court that there is error in said judgment as to the Jacksonville, Pensacola and Mobile Railroad Company, and as to the said Milton S. Littlefield wherefore it is ordered, adjudged and decreed that said judgment be reversed as to each of said defendants, and that the case be remanded with directions to dismiss the bill so far as in behalf of the State as a holder of the bonds of the Jacksonville, Pensacola and Mobile Railroad Company as to said defendant, the Jacksonville, Pensacola and Mobile Railroad Company, without prejudice to the right of the State of Florida as trustee to assert in another proceeding against said defendants, or either of them, a lien subordinate to the lien of the Trustees of the Internal Improvement Fund as to the several roads extending from Quincy to Lake City, with branch to Monticello, and from Tallahassee to St. Marks, and without prejudice to the right of the State of Florida to assert in a new proceeding a general liep as trustee upon all other property of the Jacksonville, Pensacola and Mobile Railroad Company, and without prejudice to the right of the plaintiffs, or either of them, to reform or change, upon proper proceedings, the judgment entered in this case on the second day of April, in the year of our Lord one thousand eight hundred and seventy-four, and without prejudice to any right which the plaintiffs, or-
The J., P. & M. Company appealed in this case from this judgment, and the appeal was dismissed by the Supreme Court on motion of the Trustees of the Internal Improvement Fund, at January Term, A. D. 1878. —Refoetee.