82 Fla. 38 | Fla. | 1921
This is a suit to set aside a decree of partition rendered by the Circuit Court of Hillsborough County in a cause wherein the North and South Alafia River Phosphate Company and the Florida Realty Company were parties, of certain lands in Hillsborough County comprising about three thousand acres, the latter company owning a two-thirds interest and the former company a one-third interest. The partition suit was brought by the Florida’ Realty Company, the owner of the two-thirds interest.
The appellant was complainant in the bill to set aside the decree of partition, he brought the suit in behalf of the North and South Alafia River Phosphate Company and all stockholders thereof who might wish to intervene. The defendants named were North and South Alafia River Phosphate Company, The Florida Realty Company, Franc Minton, J. A. Carrier, Fannie C. Carney, LaForest A. Shattuck, Aaron C. Winturn, A: F. Odlin, A. C. Holden, Samuel McCracken and William T. Abbott, These were the parties named in the second amended bill of complaint filed June. 14,' 1920.
An amended bill was filed by complainant within the time allowed. That bill named Ernest Yager as complainant individually, and not in behalf of any one else, and named the same parties defendant. To this bill the defendants A. C. Holden, The Florida Realty Company and A. F. Odlin interposed demurrers which were sustained on May 15, 1920, the grounds being that there was no equity in the bill; that complainant has a remedy at law for any damages sustained; laches; that the bill shows that complainant took part in the litigation complained of in 1914, and never took an appeal from the decrees rendered, and that the bill was a mere repetition of the original bill to which demurrers had been sustained.
The complainant on June 14, 1920, then filed his second amended bill of complaint for himself and on behalf of North and South Alafia River Phosphate Company and all individual stockholders thereof as mentioned above. The bill prayed that the decree of partition rendered in the case mentioned and all proceedings thereunder, including the decrees awarding to A. F. Odlin counsel fees, the sheriff’s deeds wherein the property was sold to LaForest Á. Shat-tuck and all conveyances by Shattuck to defendants named be set aside as null ánd void as against the complainant and the north and South Alafia River Phosphate Company, and
On June 21, 1920, „A. F. Odlin on his own behalf and as counsel for A. C. Holden and Florida Realty Company, moved the court to strike the bill from the files of the court upon the grounds that the bill did not comply with the court’s order on the demurrers to the first amended bill allowing the complainant to amend if it was filed on behalf of some stockholder in the North and South Alafia River Phosphate Company other than Ernest Yager himself, “he being estopped by the ruling'of this court,” that the bill was not filed within the thirty days allowed by the court; that the bill is brought in behalf of the North and South Alafia River Phosphate Company which is also named as a defendant in both original and amended bill; that the record does not disclose that the court permitted the complainant to file a bill in behalf of that company which had filed to other- bills an answer amounting to a disclaimer; that it does not appear that Yager had any power or authority to sue in behalf of the company; that the second amended bill is a mere amplification of the first amended bill to which demurrers had been sustained; that the second bill contains no new matter showing any right to the relief prayed different from the allegations of the first amended bill; that it affirmatively shows that complainant was a party to the partition suit the decree in which he seeks to annul, and never appealed from the decrees or orders in that cause; that the bill shows that the demurrer interposed by Yager in the partition suit was never ruled upon by this court, and also shows that it was, which latter allegation is true; that the bill is inconsistent in its allegations as to the ownership of lands by the North and South Alafia River Company; that the bill shows that complainant in January, 1916, entered a suit to vacate the
From the order striking the bill, or dismissing it, the complainant appealed.
The assignments of errors are that the court erred in dismissing the complainant’s bill of complaint on June 26, 1920; second, that the court erred in sustaining the demurrer to the amended bill; and third, that the court erred in dismissing the bill of complaint.
A motion was made to dismiss the appeal in January, 1921, which was continued to final hearing. The grounds of the motion were that in the original bill of complaint Paul D. Windham was made a defendant because it was alleged that he claimed to own part of the land involved in the partition suit and he was not made a defendant in the first or second amended bills although he appears to be a necessary party from the allegations of each amended bill. He was made a party to the appeal however, and does not join in the motion to dismiss. The third ground of the motion is that the third assignment of error is identical with the first.
If the complainant Yager was entitled to the relief he sought by his second amended bill, Paul D. Windham was a necessary party defendant, because it was alleged that he claimed title to part of the land involved in the partition suit, the proceedings in which were sought to be annulled ; that he claimed under a deed from L. A. Shattuek who purchased the entire tract under the partition proceedings. Windham’s interest would therefore have been affected by a decree in complainant’s favor, because the interest was not severable. He was therefore a necessary party. See 20 R. C. L. 704.
It appears that another suit in all respects like the im stant one, was begun by the same complainant and dismissed for want of prosecution.
Want of equity in a bill of review may be taken advantage of by demurrer. The complainant’s, remedy in the prior case was by appeal, of which he did not avaii himself. Considering the bill from this viewpoint we discover no error in the order of the Chancellor dismissing the bill. The motion to dismiss the appeal is therefore granted.