Sholtz v. Therrell

The bill of complaint herein was brought by "DAVID SHOLTZ, as Governor of the State of Florida, suing for use and benefit of M.A. SMITH, as General Liquidator of the State Banks of Florida in Liquidation, *Page 570 and as Liquidator of the BANK OF BAY BISCAYNE, of Miami, Florida, and as Liquidator of the BISCAYNE TRUST COMPANY of Miami, Florida, and as Liquidator of the GUARDIAN TRUST COMPANY, of Miami, Florida, and as Liquidator of THE TRUST COMPANY OF FLORIDA, of Miami, Florida; and for the use and benefit of J.M. LEE, as Comptroller of the State of Florida; and for the use and benefit of W.V. KNOTT, as Treasurer of the State of Florida; and for the use and benefit of the creditors of the BANK OF BAY BISCAYNE, Miami, Florida, and of the creditors of BISCAYNE TRUST COMPANY, of Miami, Florida, and of the creditors of the GUARDIAN TRUST COMPANY, of Miami, Florida, and of the creditors of THE TRUST COMPANY OF FLORIDA, of Miami, Florida, Complainant, v. J.H. THERRELL and AMERICAN SURETY COMPANY OF NEW YORK, a non-resident corporation doing a surety business in the State of Florida, Defendants." The prayer contains the following: "2. That there be a full accounting between the complainant for the use of the various uses, as herein named, and the said J.H. Therrell, former Liquidator of the bank and trust companies herein named, as to the entire status of his accounts with the said trusts, and that the true indebtedness of the said J.H. Therrell to the said trusts, and each of them, be ascertained and determined; that the said American Surety Company of New York, being made a party to the said cause, may have the same opportunity to be heard with reference to the same, and none other, as is the defendant, J.H. Therrell, and that upon the ascertainment of the amount of the indebtedness of the said Therrell to each of the respective trusts being determined that a decree be rendered for the proper amounts, and that such decree also be rendered as against said American *Page 571 Surety Company of New York; and that such decree include interest as allowed by law. "OXFORD CUTTS, Solicitors for Complainant. "HOMER OXFORD, Of Counsel for Complainant." The decree dismissing the bill of complaint is as follows: "DAVID SHOLTZ, as Governor of the State of Florida, for the use and benefit of M.A. Smith, as Liquidator, et al, Plaintiffs, v. J.H. THERRELL and AMERICAN SURETY COMPANY OF NEW YORK, a corporation, Defendants. "This cause coming on this day to be heard upon the motion of the defendants to dismiss the bill of complaint herein and the same having been argued by counsel for the respective parties, it is "Ordered, adjudged and decreed that the same motions be and the same are hereby sustained and granted and that the said bill of complaint be and the same is hereby dismissed. "Ordered, adjudged and decreed at chambers at Quincy, Florida, this 14th day of April, A.D. 1937. "E.C. LOVE, Judge." The entry of appeal is as follows: "DAVID SHOLTZ, as Governor of the State of Florida, for the use and benefit of M.A. SMITH, as Liquidator, et al., Plaintiffs, v. J.H. THERRELL and AMERICAN SURETY COMPANY, of New York, a Corporation, Defendants. "ENTRY OF APPEAL "COMES Now the Plaintiff, M.A. Smith, as General Liquidator of the State Banks of Florida in Liquidation, and as Appellant takes and enters this Appeal to the Supreme Court of Florida from the Orders entered herein *Page 572 by the Honorable E.C. Love, Judge of the said Court, in Chancery sitting, dated April 14, 1937, recorded April 14, 1937, in Chancery Order Book No. 13, Page 542 of the Public Records of Leon County, Florida. "This Appeal is made returnable before the Supreme Court of Florida, Tallahassee, Florida, upon the 2nd day of August, A.D. 1937. "The Clerk of said Circuit Court is hereby directed to forthwith file and record this Notice of Appeal in the Chancery Order Book as requested by law. "Dated this 18th day of May, A.D. 1937. "H.E. OXFORD, "N.B.K. ROBERTS, "Solicitors for Plaintiff-Appellant. "Recorded May 27, 1937." The assignments of error are as follows: "FRED P. CONE, as Successor to DAVID SHOLTZ, as Governor of the State of Florida, for the use and benefit of M.A. SMITH, as Liquidator, et al., Plaintiffs, v. J.H. THERRELL and AMERICAN SURETY COMPANY OF NEW YORK, Defendants. — ASSIGNMENTS OF ERROR. "Comes now FRED P. CONE, as successor to David Sholtz, as Governor of the State of Florida, for the use and benefit of M.A. Smith, as Liquidator, et al., at the time of applying to the Clerk of said Court for a transcript of the record in said cause, and assigns the following assignments of error upon which the appellants will rely for a reversal of said cause, to-wit: "1. The Court erred in sustaining the motion filed by the defendants to dismiss the bill of complaint in said cause. "2. The Court erred in its order dated April 14, 1937, sustaining and granting the motions filed by the defendants *Page 573 for the dismissal of said cause, which said order was recorded on the 14th day of April, 1937, in Chancery Order Book 13, at page 542 of the Court records of Leon County, Florida. "3. The Court erred in holding and deciding that said bill was without equity. "H.E. OXFORD, "TREADWELL TREADWELL, "JOHN H. TREADWELL, "Counsel for Appellants." The directions to the Clerk for the preparation of the Transcript of Record are captioned and signed as follows: "FRED P. CONE, as Successor to DAVID SHOLTZ, as Governor of the State of Florida, for the use and benefit of M.A. SMITH, as Liquidator, et al., Plaintiffs, v. J.H. THERRELL and AMERICAN SURETY COMPANY OF NEW YORK, Defendants. * * * "H.E. OXFORD, "TREADWELL TREADWELL, "JOHN H. TREADWELL, "Counsel for Appellants." The briefs of appellants are captioned and signed as follows: "FRED P. CONE, as Successor to DAVID SHOLTZ, as Governor of the State of Florida, for the use and benefit of M.A. SMITH, as General Liquidator, et al., Appellants, v. J.H. THERRELL and AMERICAN SURETY COMPANY OF NEW YORK, a corporation, Appellees. * * * "Respectfully submitted, "H.E. OXFORD, "TREADWELL TREADWELL, "By JOHN H. TREADWELL, "Counsel for Appellant." *Page 574 The entry of appeal is defective. See Tavern Inv. Co. v. Diehl,129 Fla. 635, 177 So. 305; Eversfield v. Mayhew, 98 Fla. 230,123 So. 737. The only theory upon which the entry of appeal as filed herein can be sustained as a transfer of the cause to this court so as to avoid a sua sponte order of dismissal or striking the cause from the docket, is by considering the entry of appeal sufficient to identify the decree appealed from and to treat the assignment of errors, which is signed by "counsel for the appellants," as a general appearance in this court of all the parties plaintiff below. There is no motion to dismiss the entry of appeal for defects therein. While the decree dismisses the bill of complaint as to all parties, the entry of appeal is expressly taken only by "the plaintiff, M.A. Smith, as General Liquidator of the State Banks of Florida in liquidation, and as Appellant," and it is signed by "solicitors for plaintiff-appellant." The caption of the entry of appeal is "David Sholtz, as Governor of the State of Florida, for the use and benefit of M.A. Smith, as Liquidator, et al., plaintiffs" which aids in identifying the decree and shows that a use plaintiff is identified with the appeal as taken. The assignment of errors shows in the caption and in the text the name of the present Governor of the State of Florida as a use plaintiff-appellant for the use of a named officer, et al. This being a suit by governmental officials for the benefit of trust funds controlled by the State, and there being a general appearance of appellants by counsel, to an entry of appeal that is legally sufficient to transfer the subject matter of the suit to the appellate court, the appeal will be considered on its merits. Gover v. Mann, 114 Fla. 128, 153 So. 895. *Page 575 ON THE MERITS