Gray v. Standard Dredging Co.

Per Curiam. This case is before us now on petition for rehearing on the opinion and judgment filed herein on March 14, 1933. In that opinion we said: “There is -but one theory upon which the complainant could hope to recover in this suit and that is upon the theory that the so-called trust fund doctrine applies in Florida and this Court has repeatedly held that it does not. See Wheeler v. Mathews, 70 Fla. 317, 70 Sou. 416; Guaranty Trust & Savings Bank v. U. S. Trust Co., 89 Fla. 324, 103 Sou. 620.” *151 It is contended by the petitioner that Section 43 of Chapter 10096, Acts of 1925, being Section 6569 C. G. L. 1927, became the law of this State .subsequent to the opinions cited above. That this provision of our statute was adopted from a like statute obtaining in the State of New York and that the decisions of the courts of final appellate jurisdiction in the State of New York construing the effect of that statute in New York are binding upon the Florida courts and were adopted with the passage of the Act as the proper constructions of such statute upon its becoming a law in this State. This theory is correct. Duval v. Hunt, 34 Fla. 85, 15 Sou. 876. It, therefore, follows that the trust-fund doctrine, as enunciated in New York in the cases of Cole v. Millerton Iron Co., 133 N. Y. 164, 30 N. E. 847, 28 Am. St. Rep. 615; and Caesar v. Bernard, 156 Ap. Div. 724, 141 N. Y. Sup. 659, 209 N. Y. 507, 103 N. E. 1122, obtains in Florida insofar as corporations organized undér Chapter 10096 of the Acts of 1925 are concerned. See Sections 1 and 43 of Chapter 10096, being' Sections 6527 and 6569 C. G. L. The corporation here involved was incorporated under this Act. While the complainant in the court below attempted to invoke the provisions of this statute the allegations of the bill of complaint and of the amended bill of complaint are not sufficient to entitle her to the relief prayed, because of certain matters which were referred to in the original opinion, to-wit: In the original bill of complaint she failed to make Greene a party, while in the amended bill of complaint she named Greene as a party defendant but declared that she sought no relief against him and in terms eliminated him as a party to the suit by affirmatively stating “that she does not require him to appear or to answer” the bill of complaint. Therefore, while Greene’s name appeared as a defendant he was not made a party upon whom *152 devolved the duty to defend nor who would be bound by •decree. The bill shows upon its face that Greene is a necessary party to the suit and that without requiring him to respond therein and to abide the decrees which might properly be entered against him because of the alleged fraud committed by him, the suit could not properly be maintained against the other defendants. Therefore, there was no error in the order of the court dismissing the amended bill of complaint. The rehearing should be denied and it is so ordered. Davis, C. J., and Whitfield, Ellis, Terrell and Buford, J. J., concur. Brown, J., concurs specially.