author: THORNAL, Justice. THORNAL, Justice.

text:
    The SURF CLUB, a Florida corporation not for profit, Appellant, v. Milton MOTLAND and William A. Van Aartsen, for themselves and all others similarly situated, Appellees.
    Supreme Court of Florida. Special Division A.
    Jan. 4, 1957.
    Rehearing Denied March 20, 1957.
    See also 93 So.2d 388.
    Dixon, Dejarnette, Bradford & Williams, James A. Dixon and Frank A. Howard, Jr., Miami, for appellant.
    Anderson & Nadeau, Miami, and John F. Muckerman, Miami Beach, for appellees.
   THORNAL, Justice.

Appellant, The Surf Club, which was defendant below, seeks reversal of a declaratory decree in a proceeding brought by the appellees to determine their voting rights in the appellant club.

The point to be determined is whether the appellees and those similarly conditioned enjoy the complete voting privileges that control the operations of the appellant club.

The Surf Club was chartered as a nonprofit Florida corporation in 1930. Simultaneously Surf Hotel Corporation was incorporated as a corporation for profit. Surf Hotel Corporation erected a clubhouse, swimming pool and related buildings. This property was leased to The Surf Club. Substantially the same people apparently organized both the profit and non-profit corporations. In 1935 the Surf Hotel Corporation conveyed its properties to The Surf Club. The purchase price was to be paid by the establishment of what was known as “ownership units”. According to the bylaws of The Surf Club, accepted by a resolution of the stockholders of the Surf Hotel Corporation, a certificate for ten shares of stock of Surf Hotel Corporation was considered an ownership unit and referred to as such. The Surf Club issued no other certificate or evidence of such ownership units. Over the years The Surf Club has prospered, its property has become increasingly valuable and it is now generally recognized as one of the luxury social clubs of the lower East Coast of Florida.

At the time of the acquisition of the property of Surf Hotel Corporation, the corporation for profit, by The Surf Club, the non-profit corporation, the bylaws of The Surf Club were amended so as to establish three types of memberships; (a) regular members who enjoy full use and privileges of the club, (b) proprietors or founders who were regular members and who in addition held an ownership unit, and (c) season members who enjoy the privileges of the club upon their election for a particular season. The total of all the regular members are entitled to exercise forty-nine per cent of the voting strength at all club meetings. The proprietors or founders exercise fifty-one per cent of the total voting strength. Season members have no vote.

Sometime prior to January 1, 1955, ap-pellees, Motland and Van Aartsen, jointly acquired one “ownership unit”. 'Except as specifically stated hereafter, the owners of ownership units had no voting powers or any club privileges. The bylaws which were adopted when The Surf Club acquired its property from the Hotel Corporation contained the following significant provisions :

“a. Certificates for ten (10) shares of stock of Surf Hotel Corporation, or voting trust certificates equivalent thereto, shall be considered as an Ownership Unit, and is hereinafter so referred to.
******
“c. The Club shall have the right to redeem Ownership Units or fractions thereof at the rate of $3,000.00 per Unit, at any time, and when purchased by the Chib, such Ownership Unit may be held, resold or cancelled at the option of the Club. Any units or fractions thereof so purchased by the Club shall have all the rights herein specified.
“d. Ownership Units or fractions thereof not cancelled on or before January 1, 1955, shall have the exclusive right, on and after that date, to exercise the complete voting rights of the Club, at the rate of one vote per Ownership Unit. Fractional votes on this basis are hereby recognized.
******
“f. Except as herein provided, the owners of Ownership Units shall not be entitled to any voting powers or to any use or privileges of the Club.
“g. No sale, mortgage or other transfer or incumbrance of any substantial part of the Club’s property shall be made, nor shall this by-law be amended or rescinded, without the consent of the holders of sixty (60%) per cent of the then outstanding Units.” (Emphasis ours.)

Over the years The Surf Club in accordance with the bylaws has acquired 216 ownership units. These units have been held by the club but have never been can-celled. The appellees allege that they and 29 others hold a total of 30 oustanding ownership units.

The problem arises out of a meeting held on January 3, 1955, wherein it was proposed to amend the bylaws so as to revest all voting rights in the founders and regular members of The Surf Club. At this meeting The Surf Club voted its 216 own-nership units in favor of the amendment. Two individual holders of the ownership units voted for the amendment and two, including appellees who jointly own one unit, voted against the amendment. By their complaint, appellees contend that paragraph “g” of the bylaws quoted above required the approval of sixty per cent of the “outstanding units”. It is their position that when the club purchased ownership units, such units for all practical purposes became dormant and could not be voted as long as they were held by the club. On the other hand, the appellant contended that under paragraph “d” of the bylaws, the units held by the club were entitled to participate in the voting rights of the club inasmuch as they had never been cancelled.

The Chancellor agreed with the appellees and held that the attempt by The Surf Club to vote the 216 ownership units was null and void. Reversal of his decree is here sought.

An analysis of the position of the ap-pellees as reflected by their complaint below, and their briefs here, indicates that they contend that they and the 29 other individually held ownership units now represent the total voting rights of The Surf Club. The practical effect of the contention is that they would actually control all of the operations of the club. In their view they could vote its dissolution and liquidation. It is their position that as of January 1, 1955, they obtained vested interests in all of the assets of The Surf Club and that they are entitled to demand in exchange for their one ownership unit jointly held an amount equal to V&o of the value of the net assets of The Surf Club. This would be the ultimate effect of the holding of the Chancellor.

We must confess that the arrangement reflected by the bylaws is most unusual. However we must bear in mind that The Surf Club is purely a social club and a non-profit corporation. See Chapter 617, Florida Statutes, F.S.A. The provisions of the bylaws which were known to the stockholders of Surf Hotel Corporation when the arrangement was created became part of the contractual relationship between The Surf Club and the holders of ownership units which were in actuality evidenced merely by a certificate for ten shares of stock of Surf Hotel Corporation, the corporation for profit. Constituting a contract as it did, we must therefore look to the terms of the contract. If our. conclusions should appear strange when contrasted with traditional concepts of corporate management, we defend with the observation that a strange and unusual agreement was created by the parties at the outset. It is not our province to re-write the contract for them. The probability is that the peculiarity of the arrangement will forestall any value of this opinion as a precedent unless it be to signal avoidance of such anomalies by others.

Under paragraph “c” quoted above the club was given the privilege of purchasing the ownership units “at any time” for the sum of $3,000. By this paragraph it was expressly provided that any such ownership unit “may be held, resold or cancelled at the option of the Club. Any units or fractions thereof so purchased by the Club shall have all the rights herein specified.”

Under paragraph “d” of the above quoted bylaws, it was provided that ownership units "not cancelled on or before January 1, 1955” shall have the complete voting rights of the club.

Under these provisions which are as binding on appellees as they are on appellant, it will be noted that the club as an entity preserved to itself, obviously for the benefit of the regular and proprietor members, the privilege of voting uncancelled membership units whenever ownership units were endowed with the right to vote. Appellees would liken the situation to one in which a corporation for profit acquires its own stock. In the contended analogy, stock taken into the corporate treasury becomes dormant and cannot be voted by the corporation itself absent specific statutory authority or possibly an expressed and unequivocal charter provision. If these ownership units were corporate stock and this were the orthodox corporation for profit, the position of the appellees would be well founded. Obviously, these ownership units are not corporate stock and The Surf Club is certainly not an orthodox corporation for profit. It seems clear from our examination of the record that this “ownership unit arrangement” was set up merely as a contractual device to enable The Surf Club to pay the purchase price for property that it acquired from the Surf Hotel Corporation. The contractual device necessarily included the provisions set up in the bylaws which brought the device into being.

With reference to paragraph “g” upon which appellees rely, it should be observed that the provision is that the bylaws cannot be changed or the property of The Surf Club disposed of without the consent of the holders of sixty per cent of the “outstanding tmits”. In view of the peculiar language of the bylaws involved, we make a distinction between units which are “not cancelled” and units which are “outstanding”. The expression “outstanding units” obviously refers to those individually held by persons such as appellees that are “outstanding” because they have not been reacquired by the club itself for the benefit of its members. While the units which are “not cancelled” may assert the voting rights in behalf of the members after January 1, 1955 (paragraph “d” bylaws), nevertheless, in view of the limitations of paragraph “g”, the bylaws cannot be amended unless sixty per cent of the “outstanding units” agree. Obviously, this requirement was inserted so that those individuals who continued tp hold “outstanding units” would be protected against any substantial change in the status of the club’s property or operating procedures.

With reference to the ultimate decree of the Chancellor we find that it was error to hold that the 216 ownership units held by The Surf Club could not be voted at the meeting for the amendment of the bylaws. The action of the club in voting these units was not null and void. At the same time the action taken at that meeting was ineffective for the reason that such action was “without the consent” of the holders of sixty per cent of the then “outstanding units”.

However, with reference to any matters other than those specifically decribed in paragraph “g” of Article VI of the bylaws, all of the “uncancelled” ownership units, including those held by the club, are entitled to vote in the conduct of the club’s business.

The briefs of the parties raise the question as to the presently-existing rights of the appellees, who as stated above own one ownership unit. In addition to the voting privileges hereinabove described, the appel-lees according to paragraph “c” of the bylaws above quoted are entitled to receive $3,000 for the unit which they hold. The club is authorized if it elects to do so to pay to appellees $3,000 in exchange for their ownership unit. Contrary to the position'of appellees, the failure to purchase their unit prior to January 1, 1955 (paragraph “d” bylaws quoted above), does not result in elevating their unit to a vested interest in the assets of the club in proportion to the number of units outstanding. The bylaws provide that each unit may be purchased for $3,000 “at any time”. This again was part of the contract. If it was unwise, we can only state that those who made it are responsible for its terms. Appellees acquired the ownership unit subject to the contractual arrangement that brought it into being and they must therefore be bound by it.

The decree of the Chancellor is reversed ánd the cause is remanded for further proceedings consistent herewith.

TERRELL, Acting C. J., HOBSON, J., and LOPEZ, Associate Justice, concur.-

On Petition for Rehearing.

THORNAL, Justice.

By their nineteen-page petition for rehearing appellees suggest that we, mirabile dictu, have disposed of this cause by an opinion without precedent which is not to be regarded as precedent. It is urged that our judgment has its provenance in casuistry rather than in the soundness of its judicial conclusions. By invectives injected with professional courtesy it is mildly suggested that our opinion not only lacks reason but that it is somewhat short when measured by the standards of common sense.

We overlook the verbosity and levity of the petition which condemns it as a violation of Supreme Court Rule 45, 31 F.S.A. We cannot overlook the accusation that our judgment was induced by concepts of pragmatism rather than controlling principles of law.

Admittedly we were here dealing with a novel and, we hope, unusual situation. If our conclusions appear to be without precedent, the result could have come about by the failure of the parties to suggest supporting precedents for their respective positions in their briefs. We might add that in our judgment the twenty-six additional authorities cited in the petition for rehearing, running the gamut from. Macklin’s Love a La Mode to Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, similarly do little to detract from the confusion generated by the original complaint.

In sum, a sympathetic examination of the petition for rehearing confirms our conviction that our original opinion is both legally sound and equitably just. The ingenuity and additional research of admittedly able counsel has failed to convince us that our judgment is the product of either “hocus-pocus” or “legerdemain” as appellees so earnestly contend. On the con-' trary, it seems clear that the petition for rehearing must be and it is hereby—

Denied.

' TERRELL, C. J., HOBSON, J., and LOPEZ, Associate Justice, concur.


source: Caselaw Access Project

author: THORNAL, Justice. i?ER CURIAM.

license: Public Domain

text:
    STATE of Florida ex rel. William A. VAN AARTSEN, Appellant, v. Alfred I. BARTON, as Secretary of The Surf Club, a corporation not for profit, Appellee.
    Supreme Court of Florida. Special Division A.
    Jan. 4, 1957.
    Rehearing Denied March 20, 1957.

      Anderson & Nadeau, Miami, and John Muckerman, Miami Beach, for appellant.
    Dixon, Dejarnette, Bradford & Williams, James A. Dixon and Frank A. Howard, Jr., Miami, for appellee.
   THORNAL, Justice.

Appellant, Van Aartsen, who was relator in a mandamus proceeding below, seeks reversal of an order denying a peremptory writ notwithstanding the return and dismissing the alternative writ.

The point for determination is whether appellant as an owner of an outstanding “ownership unit” created by contract in the acquisition of the properties of Surf Hotel Corporation by The Surf Club, a non-profit corporation, is entitled to inspect the books of the Club to ascertain the names and addresses of other holders of such ownership unit.

The factual situation which produced the mandamus proceeding is set forth in detail in our opinion in The Surf Club v. Motland, 93 So.2d 384. The relator, Van Aartsen, admittedly a holder of one-half of an outstanding ownership unit of The Surf Club, requested the respondent Barton, as Secretary of The Surf Club, to permit him to inspect the books of the club to ascertain the names and addresses of other ownership unit holders. The request was denied. Van Aartsen thereupon sought a writ of mandamus to compel the club to permit inspection to obtain the desired information.

In our opinion in The Surf Club v. Motland, 93 So.2d 384, we pointed out that after January 1, 1955, the holders of un-cancelled ownership units enjoyed the complete voting rights of the club. Prior to that date they had no such right. Furthermore, under the club bylaws any disposition or encumbrance of the club’s property or change in the bylaws required the consent of sixty per cent of the holders of outstanding units. Appellant-relator was one’ of these. Although the position of the appellant is not the same as that of a stockholder in a corporation for profit, he nonetheless now enjoys a voting privilege in The Surf Club. To that extent, he is entitled to know the names and addresses of others similarly conditioned. He has the right to communicate with such other holders of ownership units and to discuss with them matters that involve their mutual interest in the club such as they are.

We have examined the respondent’s re turn to the alternative writ and find nothing therein that would preclude the relator from obtaining the desired information so long as he holds an unredeemed ownership unit. Of course, if and when the ownership unit held by him has been redeemed, the privilege of examining the books would terminate.

For the reasons stated, the order dismissing the alternative writ is reversed with directions to enter a peremptory writ pursuant to the prayer of the petition therefor.

Reversed with directions.

TERRELL, Acting Chief Justice, HOB-SON, J., and LOPEZ, Associate Justice, concur.

On Petition for Rehearing and Clarification

i?ER CURIAM.

By petition for rehearing and clarification of our opinion it is pointed out that in the companion case of The Surf Club v. Motland, Fla., 93 So.2d 384, we held that the instant appellee, The Surf Club, could redeem the ownership unit held by appellant Van Aartsen upon payment of $3,000. It is pointed out that immediate issuance of the peremptory writ herein would deprive the appellee, The Surf Club, of the privilege of forestalling an inspection of its books by redeeming the ownership unit for the amount declared to be due upon it. We think the point has merit.

Our judgment herein reading as follows:

“For the reasons stated, the order dismissing the alternative writ is reversed with directions to enter a peremptory writ pursuant to the prayer o-f the petition therefor.”

is hereby amended as follows:

"For the reasons stated, the order dismissing the alternative writ is reversed with directions to enter a peremptory writ pursuant to the prayer of the petition therefor, provided, however, that the appellees shall have five days from the filing of the mandate herein to redeem the ownership unit held by relator or in the alternative to deposit into the registry of the Court to the credit of the holder of said ownership unit the amount due on said ownership unit as adjudicated in the cited companion case. In either event the petition herein shall be dismissed.”

The petition for rehearing when addressed to the opinion as so amended is hereby denied.

TERRELL, C. J., HOBSON and THOR-NAL, JJ., and LOPEZ, Associate Justice, concur.


author:
THORNAL, Justice.
      HOBSON and ROBERTS, Justices PER CURIAM. DREW, Justice

text:
    Beulah V. JOHNSON, Petitioner, v. W. Richard EVERY, as Ancillary Administrator of the Estate of James Nelson Johnson, Deceased, Respondent.
    Supreme Court of Florida, En Banc.
    Feb. 6, 1957.
    Rehearing Denied March 20, 1957.

      Turner, Hendrick & Fascell, Miami, for petitioner.
    Paul & Sams, Miami, for respondent.
   THORNAL, Justice.

Appellant seeks reversal of an order of the Chancellor denying her petition to compel payment of alimony and quashing a writ of scire facias issued on the basis of her petition.

The principal point for determination is whether under the fads shown by this record a former wife can assert a claim for unmatured alimony against the estate of her deceased former husband.

, On May 20, 1939, the Circuit Court of Dade County entered a decree of divorce in favor of Beulah V. Johnson and against James Nelson Johnson. By the decree Beulah V. Johnson was awarded the sum of $25 per week for support and maintenance, it being provided that the payment of such sum “shall cease, upon the death of the plaintiff [Beulah V. Johnson] or upon her remarriage to any person other than the defendant [James Nelson Johnson].” The court expressly retained jurisdiction to enforce the decree.

Prior to the divorce proceeding the parties had entered into a property settlement agreement whereby, among other things, James- Nelson Johnson agreed to pay to Beulah V. Johnson the sum of $25 per week and the contract further stipulated that the payments would be made while the contract remained in force and “shall only be terminated by the death of the party of the second part [Beulah V. Johnson] or a remarriage of the party of the second part to a person other than the party of the first part [James Nelson Johnson].”

James Nelson Johnson died on June 23, 1954, and an ancillary administration proceeding was opened in Volusia County, Florida. Thereupon, on June 8, 1955, appellant filed in the original divorce proceeding, which was had in Dade County, Florida, a petition to compel the payment of alimony in accordance with the final decree of divorce. The petition also sought modification of the decree by increasing the amount of the award, both retrospectively and prospectively, and further sought the issuance of the writ of scire facias directed to the appellee, Every, as Ancillary Administrator of the Estate of James Nelson Johnson, seeking to make him a party to the divorce proceeding in order that the James Nelson Johnson Estate might be subjected to the claim of the petitioner.

The Administrator moved to quash the writ and dismiss the petition on the ground that the petition “fails to state a claim upon which relief can be granted.” The Chancellor thereupon quashed the writ and dismissed the petition with prejudice. Reversal of this order is sought by this appeal.

Appellant contends that the final decree of divorce as well as the property settlement agreement provided that the payments should be made to her during her lifetime and so long as she remained unmarried and that such a decree and agreement can be enforced against the estate.

Appellee contends that the responsibility for the payment of alimony died with the husband and a claim therefor is not enforceable against his estate.

Although the property settlement agreement was not incorporated in the final decree, the essential aspects thereof were for all practical purposes made a part of the decree. In addition to the provisions recited above, the agreement provided that the wife and husband mutually released the interest of each other in the respective estates of each other. In other words, in exchange for the weekly payments for support and maintenance and other considerations, the appellant-wife surrendered any and all claim she might have against her husband’s estate. It should be noted that the property settlement agreement was executed two years before the divorce decree. Both by the agreement and by the decree, it was expressly provided that the weekly payments would be terminated only by the death of the wife or her remarriage to someone other than her former husband.

We subscribe to the proposition that in the absence of an express contract or a provision in a decree such as the one before us, a divorced husband’s liability for alimony terminates with his death. On the other hand, where the decree or property settlement agreement expressly provides for the continuance of the payments “until the death of the wife” then the husband’s estate remains liable for the obligation in the same manner as it is liable for any ■other legitímate obligation outstanding at the time of his death. Here there was a provision in the final decree as well as in the property settlement arrangement to the effect that the payments would be made during the life of the wife or until she remarried. She is still living and she has not remarried, and consequently, the conditions for the termination of the weekly payments have not occurred.

This was in effect a part of our holding in Underwood v. Underwood, Fla.1953, 64 So.2d 281; and Allen v. Allen, 111 Fla. 733, 150 So. 237, 238. In the case last cited, we held:

“ * * * As a general rule the obligation to pay alimony dies with the person, but agreements of the husband to bind his representatives to do this have been upheld, and there is no prohibition against them in this state.”

The rule stated appears to be applicable to the situation in the case at bar.

Several incidental questions appear in the record. Appellee contends that the claim should be adjudicated in a separate proceeding against the estate rather than by bringing the ancillary administrator into the original divorce proceeding. In Guinta v. Lo Re, 159 Fla. 448, 31 So.2d 704, we recognized by implication the propriety of asserting a claim for support of a minor child by substituting the Executor of the estate of the deceased husband in the place and stead of the husband in the original divorce proceeding although in that case, admittedly, a separate complaint in equity was filed. In the ultimate, it appears to be a problem for equity to resolve and we can see no reason why a husband’s estate should not be substituted as a party in his place and stead in a case such as the one before us.

While we concur in the view of the Chancellor that the alimony payments cannot be increased either retrospectively or prospectively after the death of the husband, we cannot concur in the view that as a matter of law his estate is not liable for the amount fixed by the final decree in a situation such as the one presently before us. See Jennings v. First National Bank, 116 W.Va. 409, 180 S.E. 772, 100 A.L.R. 494, 500; and 17 Am.Jur., Divorce and Separation, Sec. 733, p. 550.

The motion to dismiss was sustained on the general ground that it failed to state a claim on which relief could be granted. The reasons for the ruling are not specified. We are compelled to concur in the order of the Chancellor granting the motion to dismiss for the reason that the petition fails to show' that the claim had previously been filed' against the estate of the husband and rejected by the personal representative. To this extent, the order of the Chancellor must be affirmed.

We are of the view, however, that the motion to dismiss should have been granted with the privilege to the appellant to amend her petition, if she is able to do so, to show that her claim against the es-' tate of her deceased former husband was filed in accordance with the requirements of the Probate Act and rejected by the Administrator thereby compelling the institution of this proceeding. See Sec. 733.16, Florida Statutes, F.S.A. '

We agree with app'ellee ' that this was a post-decretal order that was subject to review by certiorari rather than appeal. However, under Sec. 59.45, Florida Statutes, F.S.A., the notice of appeal will be treated as “petition for certiorari.” As so construed, the petition is granted as to that portion of the order dismissing the petition below “with prejudice”, and the cause is remanded for fqrther proceedings in accordance with ' this opinion. In all other respects, the petition is denied.

TERRELL,.'C. J., and THOMAS'and O’CONNELL, 7J., concur.

HOBSON, ROBERTS and DREW, JJ., dissent. ' '

HOBSON and ROBERTS, Justices

(dissenting).

The order here reviewed was entered in proceedings by which Mrs. Johnson, petitioner below, sought to enforce against the estate of her deceased ex-husband a claim for future alimony allegedly due her from his estate, and other relief. Her claim for future alimony was based on a settlement agreement and divorce decree awarding her a divorce from her husband, and she sought to enforce her claim by means of a petition filed in the original divorce suit. In addition to her claim for future alimony, she also sought an increase, both retroactively and prospectively, in the amount of the weekly payments specified in the divorce decree to be made to her by her ex-husband.

Upon the motion of the Ancillary Administrator of the decedent’s estate, the Chancellor dismissed Mrs. Johnson’s petition. His order dismissed with prejudice “that part of plaintiff’s Petition seeking to increase the award of alimony both retroactively and prospectively and to require the Ancillary Administrator to pay alimony after the death of the defendant.” But his order of dismissal stated that “[t]he Court is of the opinion that * * * any rights which the plaintiff may have under the contract dated August 18, 1937 between the plaintiff and the defendant, the contract having been presented to the Court by plaintiff subsequent to the hearing and marked Exhibit 1, should be enforced by the method provided by law for the enforcement of any other claim or demand against the estate of the decedent.” It is this order which we here review, as on certiorari, under Supreme Court Rule 28, 31 F.S.A.

The pertinent provisions of the divorce decree relied upon by Mrs. Johnson as the basis for her petition are as follows:

“5. That the defendant, James Nelson Johnson, be and he hereby is required to pay to the plaintiff, Beulah V. Johnson, for the support of the plaintiff and their said minor son, the sum of Thirty Dollars ($30.00) per week to be paid weekly, hereafter, until such time hereafter that their said son shall go away to college, and that during the college year while the said minor son is away from the immediate care and custody of his mother, the plaintiff, such payments shall be reduced to the sum of Twenty-five Dollars ($25.00) per week, to be paid weekly, for the support and maintenance of the plaintiff.
“6. That the said payments to the plaintiff, as provided in paragraph numbered ‘5’ hereof, shall cease, upon the death of the plaintiff or upon her remarriage to any person other than the defendant.”

The parties here have stipulated (the original record in the divorce suit having been lost) that the settlement agreement was not referred to in the pleadings filed in the divorce suit, nor was it referred to in the divorce decree. It must, however, have been before the court in that cause since the above-quoted provisions of the divorce decree were virtually the same as the provisions of the settlement agreement relating to the weekly payments and the time when such payments should cease. Thus, the divorce decree must have been intended to carry out the agreement of the parties in these respects; and, this being so, it is generally held that, in construing the intention of the Chancellor, it is proper to consider the intention of the parties as evidenced by their agreement. Matter of Baratta’s Estate, 199 Misc. 246, 102 N.Y.S.2d 766, affirmed, App.Div., 112 N.Y.S.2d 493; In re Porter’s Estate, Sur., 137 N.Y.S.2d 271; In re Estate of Kuchenbecker, 1955, 4 Ill.App.2d 314, 124 N.E.2d 52; Storey v. Storey, 125 Ill. 608, 18 N.E. 329, 1 L.R.A. 320; Walters v. Walters, 341 Ill.App. 561, 94 N.E.2d 726; Mullen v. Mullen, Iowa 1955, 69 N.W.2d 420; Masters v. Masters, 1952, 155 Neb. 569, 52 N.W.2d 802; In re Mesmer’s Estate, 1928, 94 Cal.App. 97, 270 P. 732; White v. White, 1947, 210 S.C. 336, 42 S.E.2d 537. Billow v. Billow, 1953, 97 Ohio App. 277, 125 N.E. 2d 558. Contra: Farrington v. Boston Safe Deposit & Trust Co., 1932, 280 Mass. 121, 181 N.E. 779. We cannot tell from the record whether the Chancellor, in entering the order here reviewed, construed the divorce decree in the light of the parties’ settlement agreement; but he should have, and we will do so in our review of his' order.

The principal point for determination here is whether it was the intention of the court and the parties, by the terms of the decree and the agreement of the parties embodied therein, to bind the estate of the husband, after his death, to the weekly payments specified therein. Since it is not contended that the Chancellor should have considered the “surrounding circumstances, the occasion, and apparent object of the parties, to determine the meaning and intent of the language employed,” St. Lucie County Bk. & Tr. Co. v. Aylin, 94 Fla. 528, 114 So. 438, 441, quoted in Underwood v. Underwood, Fla.1953, 64 So.2d 281, 288, we must decide whether, within the four corners of the agreement and the decree, such an intention is clearly disclosed. We have concluded that it is not.

The pertinent provisions of the decree have been quoted above. In the settlement agreement, executed two years prior to the divorce, each party released the other from-all right, title and interest in and to the property which the other then had “or may hereafter acquire” and renounced the right to administer upon the estate of the other, at death. The agreement also stated that the parties had that day “satisfactorily divided their property with each other,” and listed the personal property to which each would be entitled upon their separa-. tion. The agreement provided for the payment to Mrs. Johnson of $30 per week “for the support of their infant child, * * * and also for the support in the way of subsistence and alimony for the party of the second part, Mrs. Beulah V. Johnson * * It was also provided that during the time that the child was away at college, the husband would pay Mrs. Johnson “$25.00 per week for her support and subsistence, being alimony payable by the party of the first part [husband] to the party of the second part [Mrs. Johnson],” and that the payments “for subsistence and support and alimony” should continue during .the life of the contract “which shall only be terminated by the death of the party of tbé second part or a remarriage of the party of the second part to a person other than the party of the first part,” Other provisions requiring the husband to continue to carry an educational insurance policy for - the minor child and a life insurance policy in favor of Mrs. Johnson were contained, in the agreement.

As a general rule, an obligation to pay alimony does not" survive the husband’s death, although “agreements of the husband to bind his representatives to do this have been upheld, and there is no prohibition against them in this state.” Allen v. Allen, 1933, 111 Fla. 733, 150 So. 237, 238; 17 Am.Jur., Divorce and Separation, Sec. 608, p. 473; 27 C.J.S., Divorce, § 240(b), p. 999. - Where a settlement agreement specifically states that it is to be binding upon the heirs, executors, administrators or assigns of the husband, there can be -no question as to the intention of the parties. Cf. Allen v. Allen, supra; White v. White, 1947, 210 S.C. 336, 42 S.E.2d 537. The difficulty arises where the agreement and divorce decree provide for the payment of alimony to the wife “during the remainder of her life,” or “until her death or remarriage,” or similar expressions. While there are a few cases holding to the contrary, cf. Wides v. Wides, 1945, 300 Ky. 344, 188 S.W.2d 471; Babcock v. Babcock, 147 Misc. 900, 265 N.Y.S. 470; Durland v. Syracuse Trust Co., 230 App.Div. 786, 244 N.Y.S. 653, the great majority of courts hold that such expressions are not conclusive of an intention to bind the husband’s estate, after his death, to the payments of alimony therein specified. Despite such a provision, the court “necessarily must determine what was the intention of the parties as evidenced by the stipulation which was subsequently incorporated in the divorce decree.” Mullen v. Mullen, Iowa 1955, 69 N.W.2d 420, 423.

Thus, in the following cases, under the noted contractual and or decree provisions, it was held that the parties and the court intended that the husband’s estate should be bound after his death to pay to the wife the alimony specified therein: Storey v. Storey, 125 Ill. 608, 18 N.E. 329, 1 L.R.A. 320 (for so long as she may be and remain sole and unmarried); In re Mesmer’s Estate, 1928, 94 Cal.App. 97, 270 P. 732 (during her lifetime or until she remarries); Parker v. Parker, 193 Cal. 478, 225 P. 447 (during the remainder of her natural life); Ramsay v. Sims, 1952, 209 Ga. 228, 71 S.E.2d 639 (for her natural life or until she remarries). But the following cases construed the agreement and decree as not intending to so provide: In re Porter’s Estate, Sur., 137 N.Y.S.2d 271 (during her lifetime); In re Estate of Kuchenbecker, 1955, 4 Ill.App.2d 314, 124 N.E.2d 52 (during the remainder of her natural life or until she remarries); Mullen v. Mullen, supra, 69 N.W.2d 420 (so long as she shall live); Billow v. Billow, 1953, 97 Ohio App. 277, 125 N.E.2d 558 (until her death or remarriage); Foster v. Foster, 1953, 195 Va. 102, 77 S.E.2d 471, 39 A.L.R.2d 1397 (until her death or remarriage).

In each of the cases first above cited, upholding the right of the wife to recover against the estate of her deceased husband, it was shown that the wife released a legal or equitable property right, In re Mesmer’s Estate, supra; Ramsay v. Sims, supra, or that the payments were secured by a trust deed or bond or lien upon the husband’s property. Storey v. Storey, supra; Parker v. Parker, supra.

In the instant case, the agreement does not clearly disclose that the wife released a valuable property right nor that she had. any special equity in her husband’s business or property. Construing the language used in the agreement and the decree in accordance with its usual meaning, it appears that the weekly payments were intended as “alimony” in its strictest sense, meaning “nourishment” or “sustenance,” arising out of the husband’s common-law obligation to support his wife and child. Cf. Jacobs v. Jacobs, Fla.1951, 50 So.2d 169. This being so, we will not infer that the parties and the court intended the payments to extend beyond the death of the husband and to be binding upon his estate, as against the general rule that such payments cease upon his death. Our judgment is reinforced by the fact that, in the agreement, the wife released any right to property which the husband might acquire in the future — thus, in effect, waiving any rights she might have to share in his estate. For all that appears, the parties contemplated simply that the weekly payments would be paid out of the husband’s salary or earnings; and these would, of course, cease upon his death. Cf. In re Porter’s Estate, supra, 137 N.Y.S.2d 271.

An examination of the opinions in the two Florida cases which it is insisted are in point, i. e., Underwood v. Underwood, Fla. 1953, 64 So.2d 281, and Allen v. Allen, 111 Fla. 733, 150 So. 237, discloses that in each of said cases there was a clear, unambiguous convenant or agreement on the part of the husband to bind his personal representative after his death. It is our conclusion that the general rule to the effect that “the obligation to pay alimony dies with the person” should not give way in a case of this type which discloses no independent equities in favor of the erstwhile wife, unless by the terms and covenants of the separation agreement the husband, by express language which admits of no doubt, makes his obligation binding upon his estate.

We do not decide, since the question is not presented, whether an award of this type of “pure” alimony could be made by the court to extend beyond the lifetime of the husband, in the absence of an agreement of the parties to that effect. There is no statute in this state so providing; and it has been said that “generally such power is considered as not existent, in the absence of any statute or agreement between the parties.” See the statement of the annotator in 39 A.L.R.2d at page 1409, and cases cited.

While the Chancellor did not specify in his order the reasons for granting the Ancillary Administrator’s motion to dismiss, his order may be sustained on the ground, alleged in the motion to dismiss, that Mrs. Johnson’s petition failed to state a claim on which relief could be granted, for the reasons stated above.

It is not necessary, then, to decide the question of whether the court had jurisdiction of the petition, as argued here by the parties. It might be noted, however, that Guinta v. Lo Re, 1947, 159 Fla. 448, 31 So.2d 704, 705, is ample authority for the court’s exercise of jurisdiction in a matter of this kind. It was there held that a suit by minor children for an adjudication of their right to enforce against the estate of their deceased father a claim for past and future installments of support money theretofore awarded in a divorce decree ■“should be treated as supplemental to the original suit for divorce * * *.” Nor would the fact that the proceedings may have been instituted in the equity court prior to filing a claim in the Probate Court deprive the equity court of jurisdiction, provided, of course, that the equity proceedings were filed and service of process had upon the personal representative of the decedent’s estate within the eight-month period prescribed by the statute. Se.ction 733.16, Fla.Stat.1955, F.S.A.

The other question argued has been considered, and in my opinion no error has been found.

For the reasons stated, we think the petition for certiorari should be denied and therefore respectfully dissent.

DREW, J., concurs.

On Petition for Rehearing

PER CURIAM.

By petition for rehearing appellee Every appears to be of the view that we have in some fashion receded from our precedents holding that the obligation to pay alimony dies with the divorced husband absent, a specific contractual or decretal provision to the contrary.

We do not so construe the opinion. We here merely held that there was a contractual and decretal provision sufficiently definite and specific to impress the estate with the obligation assumed by the '• divorced husband until the death or remarriage of his former spouse. ’ As sq understood we fail to foresee the dire consequences suggested by the petition.

The petition for rehearing is denied.

TERRELL, C. J., and THOMAS, THORNAL and O’CONNELL, JJ., concur.

HOBSON, ROBERTS and DREW, JJ., dissent.

DREW, Justice

(dissenting).

I agree that the majority opinion is not in conflict with nor does it recede from the precedents of this court' which hold that the obligation to pay alimony dies with the. divorced husband in the absen.ce of a specific contractual or decretal provision to the contrary. I am still of the view, however, that the majority' opinion' was in error in holding that the contract or decree in this case was sufficiently definite to warrant a charge against the husband’s estate.

HOBSON and ROBERTS,' JJ., concur.


author: PER CURIAM.

text:
    AMERICAN ACCEPTANCE CORPORATION, a Florida corporation, Appellant, v. Jay BRAGG, d/b/a Jay Bragg Used Cars, Appellee.
    Supreme Court of Florida, Division B.
    March 6, 1957.
    Joseph L. Wolf, Tampa, for appellant.
    William H. Frecker, Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of Baer v. General, Motors Acceptance Corporation, 1931, 101 Fla. 913, 132 So. 817.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    Betty POSNER, Appellant, v. Jack POSNER, Appellee.
    Supreme Court of Florida, Special Division A.
    March 6, 1957.
    Botts & Greene, Miami, for appellant.
    Ben Cohen and Montague Rosenberg, Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Meloche v. Meloche, 101 Fla. 659, 133 So. 339, 140 So. 319, and Randall v. Randall, 158 Fla. 502, 29 So. 2d 238, but without prejudice to appellant to apply to the Chancellor to require security for the payment of maintenance for the minor children if a proper showing can be made under Section 65.14, Florida Statutes, F.S.A.

Upon remand of the cause, either party is authorized to apply to the Chancellor to make such modification as to the manner and method of accomplishing a division of the corporate stock held by them in the light of our opinion in Schnitzer v. Schnitzer, Fla.1949, 40 So.2d 450.

Affirmed.

TERRELL, C. J., and ROBERTS, DREW and THORNAL, JJ., concur.


text:
    Leon V. McLAULIN and Sanford-Orlando Kennel Club, Inc., a Florida corporation, Petitioners, v. W. B. MILLER, F. A. Dyson, John W. Meisch, B. C. Dodd and O. E. Fourakre, as and constituting the Board of County Commissioners of Seminole County, Florida, and Seminole Park Raceway, Inc., a Florida corporation, Respondents.
    Supreme Court of Florida, Division B.
    March 6, 1957.
    Steed & Steed, Orlando, and Carl T. Hoffman, Miami, for petitioners.
    Turnbull & Senterfitt, Orlando, for respondents.
   PER CURIAM.

We have duly considered the notice of appeal in this cause as a petition for certi-orari to review the action of the trial court denying appellants’ application for temporary injunction. The matter having been duly argued by respective counsel, it is upon consideration thereof,

Ordered That certiorari be and the same is hereby denied.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    William O. RAULERSON, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, En Banc.
    March 6, 1957.
    Milo I. Thomas, Jr., and Guy Gillen, Lake City, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

We have examined and considered the record in this case in the light of briefs filed and have also, pursuant to sub-paragraph (2) of Section 924.32, Florida Statutes, 1941, and F.S.A., reviewed the evidence to determine if the interest of justice requires a new trial, with the result that we find no reversible error is made to appear and the evidence does not reveal that the ends of justice require a new trial to be awarded.

Affirmed.

TERRELL, C. J., and HOBSON, ROBERTS, DREW, THORNAL and O’CON-NELL, JJ., concur.

THOMAS, J., not participating because of illness.


author: HAMITER, Justice.

text:
    231 La. 983
    Bertha SEIBER et al. v. Wesley RINGGOLD et al.
    No. 41562.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Braxton B. Croom, Baton Rouge, for defendants-appellants.
    Earl H. Willis, St. Martinsville, for plaintiffs-appellees.
   HAMITER, Justice.

The instant appeal is from a judgment in favor of plaintiffs, Bertha Seiber Dyson and Clarence Dyson, ordering the cancellation from the public records of an oil, gas and mineral lease executed by them on January 28, 1950 which covered a tract of land in St. Martin Parish containing approximately 53.33 acres. Appellants, who are defendants in the suit, assert rights in and to the lease as follows: an overriding royalty by Mary C. Meadors, and fractional working interests by John E. Perkins, Wesley Ringgold and George A. Butler. Other persons formerly interested in the lease have executed releases of their rights to plaintiffs.

First to he considered are exceptions of no right and no cause of action under which appellants contend, to quote from the brief of their counsel, that “plaintiffs failed to show in the original petition filed herein any contractual obligations or privity of contract existing between defendants herein and the original lessor.” This contention overlooks the important circumstance that the asserted rights of appellants flow from and depend entirely on the lease which, according to the allegations of the petition, has expired by reason of noncompliance by the lessee and his assigns with certain specified obligations (hereinafter discussed). The trial judge, in our opinion, properly overruled the exceptions.

On the merits the record discloses that in July, 1950 a well was completed on the leased premises and production of oil in paying quantities obtained. However, prior to January 1, 1952 such production ceased, and thereafter there were no reworking or drilling operations as required by the terms of the lease. Nor were any delay rentals ever paid to plaintiffs. As a result the lease, which was the source of the rights claimed herein by appellants, terminated. Paragraph six thereof expressly provided that “ * * * if, after the discovery and production of oil, gas or other minerals in paying quantities, the production thereof should cease from any cause this lease shall terminate unless Lessee commences additional drilling, reworking or mining operations within ninety (90) days thereafter * * * in an effort to restore such production, or (if during the primary term) resumes the payments of rentals in the manner hereinabove provided for in connection with the abandonment of wells drilled. * * *”

To the demands of plaintiffs these appellants pleaded estoppel, the basis of which was a letter written by the former’s attorney to Wesley Ringgold under date of April 2, 1952. Therein the attorney expressed the view that the lease had terminated; he suggested that by reason of the termination no further funds should be expended; and he requested that the lessors be voluntarily released from their contract. The trial judge correctly overruled the plea and appropriately observed as follows: “The theory of estoppel is inapplicable here. The defendants did not act upon the strength of the plaintiffs’ statement to their prejudice, rather, the letter of plaintiffs’ attorney merely stated that he considered the lease terminated and offered an admonition to defendants not to spend additional funds. This can not now be construed as having influenced defendants in a manner for which the plea of estoppel can be urged. At most, plaintiffs’ attorney merely reached a conclusion of law and defendants, if they acted upon the strength of it, did so at their peril. * * * >>

In an answer to the appeal plaintiffs pray that the judgment be amended by awarding the attorneys’ fees demanded by them. Since no evidence was adduced in support of such demand it should be non-suited. See Melancon v. Texas Company, 230 La. 593, 89 So.2d 135.

For the reasons assigned the judgment appealed from is amended by nonsuiting plaintiffs’ demand for attorneys’ fees and, as thus amended, it is affirmed.


author: MOISE, Justice.

text:
    231 La. 988
    Isaac HANEY v. Gladys DUNN.
    No. 42203.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Nealon Stracener, Baton Rouge, for def endant-app ellant.
    Odom & Belanger, R. W. Williams, Jr., Baton Rouge, for plaintiff-appellee.
   MOISE, Justice.

The defendant appealed to the Court of Appeal for the First Circuit, from a judgment of the trial court, ordering a partition of a tract of land, and improvements, located in East Baton Rouge Parish. The Court of Appeal for the First Circuit, 71 So.2d 363, remanded the cause to the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, for the reception of evidence as to the value of the real estate in controversy. When the case was lodged in the Court of Appeal a second time, it found that the property was worth more than $2,000 and ordered the case transferred to the Supreme Court, 75 So.2d 901.

This Court, ex proprio motu, must determine whether it has appellate jurisdiction. Grace v. Boggs, 220 La. 22, 55 So.2d 768; Nelson v. Continental Asphalt & Petroleum Co., 157 La. 491, 102 So. 583.

At the time the original trial of this case was concluded, and an appeal bond was furnished, the district court lost jurisdiction of this matter. Vaughn v. American Bank & Trust Co., 223 La. 479, 66 So.2d 4; Ilardo v. Agurs, 226 La. 613, 76 So.2d 904. Since the record did not affirmatively show that the Supreme Court had jurisdiction, the Court of Appeal should have entertained the appeal.

“ * * * the appeal properly lies to the Court of Appeal as that Court is vested with general appellate jurisdiction of all cases of which the District Courts have exclusive original jurisdiction and 'of which the Supreme Court is not given jurisdiction. * * * ’ Section 29 of Article 7 of the Constitution; Bunol v. Bunol, 168 La. 391, 122 So. 121; Noe v. Maestri, 193 La. 382, 190 So. 588; Succession of Solari, 218 La. 671, 50 So.2d 801 and Board of Com’rs [of Port of New Orleans] v. Hibernia Nat. Bank, 219 La. 208, 52 So.2d 753.” Grace v. Boggs, 220 La. 22, 55 So.2d 768, 769.

The remand to the district court by the 'Court of Appeal was improper. The following ruling pronounced in the case of Ilardo v. Agurs, 226 La. 613, 76 So.2d 904, 906, is applicable here:

“ * * * Remand by the Court of Appeal can only be had in aid of its appellate jurisdiction. No litigant has more than one appeal. Newspaper Feature Service, Inc., v. Southern Publishing Co., 13 Orleans App. 406. The order of the Court of Appeal to remand to the district court, as well as all proceedings taken there on remand, were unauthorized and illegal. Consequently, the case was never legally removed from the Court of Appeal, Second Circuit, where it was properly lodged on appeal. * * ” See, Beene v. Pardue, 226 La. 606, 76 So.2d 902; Succession of Jenkins (Jenkins v. Dykes), 230 La. 367, 88 So.2d 659.

For the reasons assigned, the order of the Court of Appeal for the First Circuit remanding this cause to the district court, for the purpose of fixing appellate jurisdiction, is annulled, and all proceedings had in the Nineteenth Judicial District Court pursuant to that order, are set aside, including the transfer to this Court resulting from those unauthorized proceedings. The clerk of this Court is ordered to transfer, forthwith, the record in this case to the Court of Appeal for the First Circuit, so that it may hear and dispose of the appeal in conformity with law. All costs to await the final determination of the cause.


text:
    231 La. 993
    STATE of Louisiana v. Earl BLANKENSHIP.
    No. 43084.
    Supreme Court of Louisiana.
    Feb. 25, 1957.

      Voelker & Ragland by William B. Rag-land, Jr., Lake Providence, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Thompson L. Clarke, Dist. Atty., St. Joseph, Cliff C. Adams, Asst. Dist. Atty., Tallulah, for ap-pellee.
   HAMITER, Justice.

The defendant, Earl Blankenship, was convicted by a jury of the theft of property of $40 value and was sentenced to serve two years in the state penitentiary. From the conviction and sentence he has appealed, relying on four bills of exceptions to obtain a reversal.

On October 6, 1955, the date fixed for the trial, the district attorney filed a written motion for a continuance in which he showed: ‘.‘That one of the witnesses, James Wilson, has absented himself from the State of Louisiana, and his present -whereabouts is unknown; that the said witness’ presence on the trial of this cause ■is material; that efforts have been made to .ascertain the present whereabouts of said witness, but said efforts, as of now, have •been without avail.”

The court granted the continuance over the objection of defense counsel, and to the ruling bill of exceptions No: 1 was reserved. Under it the argument is made that the trial judge unreasonably abused his recognized broad discretion, he having .granted the continuance and thereby deprived the accused of a speedy trial when it appeared that there was a lack of due ■diligence on the part of the state in failing to summon the desired witness. We do not .agree. The issuing of a subpoena for the material witness Wilson would have been ■a vain and useless gesture, for his address at that time was unknown to the district attorney. Furthermore, the accused was in no manner prejudiced by the ruling. He was not incarcerated pending the trial; rather, he was out of jail on a reasonable bond

Initially, the accused had been charged in an information reading: “That Earl Blankenship * * * on the - day of the month of Feb., in the year of our Lord One Thousand Nine Hundred and 55 * * * committed theft of barb wire, the property of Ed. Holley, of a value of $50.00 * * When the case came on for trial under the new fixing, and previous to the calling of the jury, the state proposed to amend the information to show (as is disclosed by the court minutes) “that ,(the) theft took place on or about Jan. 29, 1955 .and Feb. 6, 1955 and also to show ownership ■of wire to be (in) J. R. Dillard”, instead of in Ed. Holley. To the proposal defense counsel objected. The objection was overruled, the amendment permitted, and bill of ■exceptions No. 2 taken. From the perfected bill it appears that the objection was grounded on the contention that the accused would be prejudiced by the amendment inasmuch as he was prepared to defend only as to the date and ownership alleged in the original information.

As stated in LRS 15:253, “ * * * The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made * * * the accused shall on his motion be entitled to * * * a reasonable continuance of the cause unless it shall clearly appear from the- whole proceedings that he has not been misled or prejudiced * * *>> That this accused was prejudiced in making his defense by the permitted ■amendment we entertain considerable doubt. The original information did not set out any particular date, and he was ready to go to trial without having been informed as to exactly when the offense allegedly occurred (he requested no bill of particulars). Moreover, in cases of theft proof of ownership of the property stolen in the particular person alleged is unimportant, the state being required to show only that it belonged to someone other than the accused. State v. Babineaux, 146 La. 290, 83 So. 558 and State v. Mills, 214 La. 979, 39 So.2d 439. In fact, this defendant, to quote from the brief of his counsel, “ * * * admits that the State is not compelled to identify the person whose property is the subject of a theft * *

But assuming that the changes were so material that the defendant was not then prepared to defend against them, he could have protected himself by requesting a continuance. For his failure to make the request he explains that “a motion for a continuance would surely have been denied since the trial had been delayed for nearly a year.” This, we think, is an unwarranted assumption and undoubtedly an afterthought.

With further reference to bill No. 2 the accused argues in this court that the information, as amended, was defective for duplicity. And certain allegations made in the concluding paragraph of his motion for a new trial (filed in the district court) tend to the same conclusion. However, such objection to the information comes too late. LRS IS :221 provides that the objection of duplicity “can not be urged after the jury has been sworn, and must be set up either by demurrer or by a motion to quash the indictment”, a requirement with which this accused did not comply. See also State v. Turner, 178 La. 927, 152 So. 567 and State v. Guillot, 200 La. 935, 9 So.2d 235. Obviously, the purpose of that statutory provision is to give the district attorney, before trial, the opportunity for amending a duplicitous indictment, either by dropping one of the offenses charged and proceeding to trial on the other or by providing separate counts when the charges can be properly made in that manner. As to the latter alternative LRS 15:225 states: “It shall be lawful to insert several counts in the same indictment against the same defendant for any number of distinct acts of theft, and the aggregate amount of these thefts shall determine the grade of the offense charged; * * And LRS 15:221 (above quoted) clearly indicates that the failure of the defendant to object to a duplicitous indictment by means of a demurrer or a motion to quash before the jury has been sworn constitutes a waiver of the objection. .(Italics ours.)

The third bill of exceptions was reserved to the judge’s overruling of a motion for a mistrial, defense counsel having objected to certain remarks of the district attorney made during the course of the opening statement. In describing the alleged offense the district attorney told'the jury: “The defendant, Earl Blankenship, James Diamond and C. B. McNease drove north on Highway 45 until they came to the property of H. L. Kennedy. The three parties got out of the truck and walked to a shop where a roll of mesh wire was located. The defendant, Earl Blankenship, C. B. Mc-Nease and James Diamond picked up the roll of mesh wire and loaded it in the rear of the defendant’s pick-up truck. They then proceeded north to the property of James R. Dillard.” The objection to these remarks was that the act thus related constituted a separate crime for which the defendant was not charged; that testimony in proof of it would not be admissible on the trial; and that, therefore, the district attorney’s reference to the occurrence was prejudicial.

The Per Curiam of the district judge informs us that the mentioned act was closely connected with the theft of wire with which the accused was charged, it having been committed during the same night and on the same trip. This being true such act, even if constituting a separate crime, could be established during the trial (and hence was properly referred to in the opening statement) as showing intent. LRS 15 :445 and 446; State v. Haddad, 221 La. 337, 59 So.2d 411; and State v. Palmer, 227 La. 691, 80 So.2d 374.

Bill No. 3 involves also an objection to the district attorney’s reference to the defendant, made during the opening statement, as “an overbearing person and possessing a dictatorial nature”. The judge, in his Per Curiam to the bill, states that such official had only casually mentioned that the defendant was of a dictatorial nature and that he did not consider the remark to be prejudicial, “especially since the testimony of his co-conspirators was to be used against him.” He also points out that the objection, as well as the one pre7 viously discussed, was not urged until after the district attorney had completed his statement. Since the remark was not objected to when it was made, and the judge was not requested at any time to instruct the jury to disregard it, we do not believe that there was error in the court’s refusal to order a mistrial.

The last bill was taken to the overruling of the motion for a new trial. This motion-is based on the alleged errors contained in the aforediscussed bills and on the assertion that the verdict was contrary to the law and the evidence. The bill, obviously, presents nothing for our consideration.

For the reasons assigned the conviction and sentence are affirmed.


text:
    231 La. 1002
    GULF REFINING COMPANY v. The HUNTER COMPANY, Inc. et al.
    No. 42685.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Stone & Toomer, Lake Charles, Wilkinson, Lewis, Wilkinson & Madison, Shreveport, for defendant-appellant.
    Pugh, Buatt & Pugh, Crowley, for defendant-appellee.
   MOISE, Justice.

This is an appeal from a judgment of the trial court, in a concursus proceeding, which maintained a plea of prescription, referred to the merits, filed by the defendant, La Prairie Maronne Companie.

We have read the excellent reasons of the trial judge and approve them in full. They read:

“This is a concursus proceeding instituted on March 9, 1954, by Gulf Refining Company for the purpose of determining the ownership of one-eighth of the oil, gas and other minerals produced from the following described property, to-wit:
“East Half of the Southeast Quarter of the Southwest Quarter (El/2 of SEJ4 of SW|4) of Section Twenty-one (21), Township Nine (9) South, Range Eleven (11) West, containing Twenty (20) acres, more or less, situated in Calcasieu Parish, Louisiana.
“By deed dated October 30, 1915, Samuel S. Hunter sold to La Prairie Maronne Companie the above-described tract of land for a consideration of $12,500.00, paid in capital stock of the vendee, which deed also contains the following stipulation:
“ ‘And as a further consideration hereof, La Prairie Maronne Companie agrees and binds itself to deliver to the vendor herein, his heirs or assigns, one-eighth (i/s) of all oil or other mineral substances produced from said tract of land herein conveyed, free of all charges and expenses, at the wells or mines where produced.’
“ ‘And the parties hereto hereby declare that this instrument is executed on the date hereinabove written to stand in lieu of a certain act of sale in the same words and figures, and between the same parties, executed in the month of February, 1908, and filed for record and recorded in the conveyance records of the parish of Cal-casieu Louisiana, shortly thereafter, and which said act of sale was destroyed by fire at the time of the burning of the Court House of the said parish of Calcasieu, in the month of April, 1910.’
“All of the rights which Samuel S. Hunter' hád or may have had in and to said property, or to the oil or other mineral substances produced therefrom, have become vested in The Hunter Company, Inc.
“On September 21, 1953, La Prairie Maronne Companie leased this tract of land to C. C. Gilger for the development of oil, gas and other minerals, which lease provides that in the event of oil production the royalties to be paid by lessee are one-sixth of the oil produced and saved from the land and not used in treating said oil to make it marketable. The lessee assigned interests in this lease to various parties, and thereafter a well was drilled by C. C. Gilger and his assignees and production of oil was obtained from this 20-acre tract of land during the month of October, 1953. Gulf Refining Company has purchased the oil from this well.
“No drilling operations were conducted on this tract of land for a period in excess of ten years after October 30, 1915, and no production of oil, gas or other minerals was obtained from said property until the above-described well was completed sometime during the month of October, 1953.
“A dispute has arisen between The Hunter Company, Inc., and La Prairie Maronne Companie as to the ownership of one-eighth of the oil produced from this property, and it is because of that dispute that Gulf Refining Company instituted this concursus proceeding. The petitioner has deposited into the Registry of the Court the net value of one-eighth of the oil produced from said property from October, 1953, until the end of February, 1954, or a few days before the petition was filed.
“Petitioner named as defendants in this proceeding The Hunter Company, Inc., La Prairie Maronne Companie and C. C. Gilger and his assignees. The Hunter Company, Inc., filed an answer demanding that it be recognized as the owner of one-eighth of the oil, gas and other minerals which have been or may be produced from this property. La Prairie Maronne Companie filed a plea of prescription of ten years, liberandi causa, a plea of estoppel and an answer, praying that the demands of The Hunter Company, Inc., be rejected and that La Prairie Maronne Companie be recognized as the owner of the interest now in dispute. C. C. Gilger and his assignees filed a plea of prescription of ten years, liberandi causa, a plea of estoppel and an answer, praying that the demands of The Hunter Company, Inc., be rejected and that C. C. Gilger and his assignees be recognized as the sole owners of the lease and of five-sixths of the entire fund deposited by petitioner in the Registry of the Court. Gulf Refining Company filed a plea of estoppel demanding a judgment decreeing that The Hunter Company, Inc., is not entitled to assert a claim to five-sixths of the amount deposited in the Registry of the Court, and that C. C. Gilger and his assignees be recognized as the owners of five-sixths of said fund.
“Prior to the time the case was scheduled for trial, and on joint motion of all parties, judgment was rendered recognizing C. C. Gilger and his assigns as owners of a five-sixths leasehold working interest in the property, directing the Clerk to pay unto the said defendants five-sixths of the funds deposited in the Registry of the Court, and dismissing this suit as to the said C. C. Gilger and his assigns.
“The plea of prescription and the plea of estoppel filed by La Prairie Maronne Companie and the plea of estoppel filed by Gulf Refining Company were referred to the merits, and the case came up regularly for trial. It is before the Court at this time for decision on its merits.
“The sole question to be determined by the Court is whether or not, under the circumstances presented here, The Hunter Company, Inc., is entitled to one-eighth of the oil production from the 20-acre tract of land.
“The Hunter Company, Inc., contends that the provisions contained in the deed dated October 30, 1915, relating to oil or other mineral substances produced from said tract of land constitutes an agreement on the part of the vendee (La Prairie Ma-ronne Companie) that it will deliver to the vendor (Samuel S. Hunter) one-eighth of the oil which might be produced from said land, conditioned upon the happening of a future event, namely, the discovery and production of oil, and that this agreement was entered into as an additional consideration for the deed. It contends that in view of the nature of the contract prescription did not begin to run against this right until the happening of the subsequent event, the discovery and production of oil, which occurred during the month of October, 1953. As authority for this argument counsel for The Hunter Company, Inc., rely largely upon the provisions of Articles 2021, 2037, 2038 and 2043 of the [LSA] Revised Civil Code relating to conditional obligations Article 3544 relating to prescription of personal actions, and the case of Rudnick v. Union Producing Company, 209 La. 943, 25 So.2d 906.
“The case of Rudnick v. Union Producing Company, supra, involved an oil, gas and mineral lease dated July 6, 1926, which contained the following provision:
“< * * * as additional consideration, lessee agrees that if any well drilled on the above described property makes or produces not less than fifty (50) and not over one hundred (100) barrels of oil per day, to pay to lessor four thousand dollars ($4,-000.00); If any well drilled on said property makes or produces over one hundred (100) barrels and not over two hundred fifty (250) barrels of oil per day, to pay to lessor ten thousand dollars ($10,000.00); if any well drilled on said property makes or produces over two hundred fifty (250) barrels of oil per day, to pay lessors twenty thousand dollars ($20,000.00) ; to be more explicit whichever of the above sized well(s) should come in first, that special size well shall set the money consideration to be paid * *
“A small well was completed on this lease in 1927, which kept the lease in force. On July 22, 1938, more than 12 years after the date of the original contract, a second well was completed which produced more than 50 and less than 100 barrels per day. Despite the pleas of prescription of three years filed by defendants, the Supreme Court held that plaintiffs were entitled to the additional consideration of $4,000.00 under the above-quoted provisions of the lease. The following language was used by the Court:
“ ‘ * * * The “additional consideration” provided in the lease is in the nature of a promise to pay a definite amount on the happening of one of the contingencies listed and falls within the ten year prescription under article 3544 of the [LSA] Revised Civil Code. The right accrued in 1938. This suit was filed in 1942 and the ten year prescriptive period has not accrued.’
“Counsel for The Hunter Company, Inc., argue that the interest claimed by that company in this suit is identical in principle with the interest which was at issue in the Rudnick case. In view of the ruling in that case, they contend that the prescription of ten years, liberandi causa, provided in Article 3544 of the [LSA] Civil Code, is applicable, but that the prescriptive period did not begin to run against the rights owned by The Hunter Company, Inc., until production of oil was obtained in October, 1953, and thus such rights have not been lost by prescription.
“Counsel for La Prairie Maronne Companie, on the other hand argue that the interest acquired by Samuel S. Hunter by virtue of the deed dated October 30, 1915, constitutes either a royalty interest or a mineral interest in and to the above-described property. They further contend that since no drilling operations were conducted within ten years after the date of that deed and no production of oil or other mineral substances was obtained until the year 1953, any right which Samuel S. Hunter or his assigns may have acquired by virtue of the above-quoted provision in that deed has been extinguished by prescription of ten years,, liberandi causa.
“The deed which was at issue in the case of Vincent v. Bullock, 192 La. 1, 187 So. 35, contained the following provision:
“ ‘It is however, understood and agreed that the vendors herein reserve unto themselves and their heirs and assigns, in perpetuity, a one-sixteenth 04.6th.) royalty of all the oil, gas and other minerals produced and saved from said premises; said royalty to be delivered to the vendors or assigns, free of cost of production and a royalty of twenty-five cents per ton for all salt and sulphur mined and marketed off said premises. This royalty reservation forms part of the purchase price.’
“The Supreme Court interpreted the interest so reserved in that deed as a species of real right subject to the prescription of ten years, liberandi causa, and it held that the prescriptive period began to run on the date the deed was executed. The Court used the following language:
“ 'The reservation in controversy here, as shown hereinabove, is a real obligation in favor of the plaintiffs, their heirs or assigns, and in our opinion is a species of real right subject to the prescription of ten years, liber-andi causa, within the meaning and contemplation of the Revised Civil Code articles above referred to.
* * * * * *
“ ‘In the instant case the obligation created in favor of plaintiffs, that is, to receive Vi6th of all of the oil, gas, or other minerals and 25‡ per ton on all salt and sulphur mined, was conditioned upon the production of oil, gas or other minerals. True the contract did not designate a time within which the event must happen, nevertheless that time is limited by law and “the condition is considered as broken, when the time [10 years] has expired without the event having taken place.” (Brackets ours.)’
“It appears to this Court that the interest reserved or acquired by Samuel S. Hunter under or by virtue of the provisions of the deed which he executed in favor of La Prairie Ma-ronne Companie on October 30, 1915, is the same type of interest or right which was considered by the Court in the case of Vincent v. Bullock, supra. Hunter unquestionably reserved or acquired a royalty interest, and in view of the language used by the Court in the case of Vincent v. Bullock, it follows that the interest is subject to prescription of ten years, liberandi causa, as provided in Articles 3528, 3529, 3549, 3544 and 3546 of the [LSA] Revised Civil Code, and that the ten-year prescriptive period began to run on the day the interest was so reserved or acquired rather than at the time production was obtained.
“The type or royalty interest involved in this case and in the case of Vincent v. Bullock is distinguishable from the obligation considered in the case of Rudnick v. Union Producing Company, supra. In the Rudnick case the agreement on the part of the lessee to make an additional cash payment on the happening of a future event constituted a part of the consideration due by the lessee for the rights which it enjoyed under that particular oil and gas lease. The Court held, in effect, that since this obligation constituted a part of the consideration due under the lease, the obligation continued as long as the lease remained in force, and that prescription of ten years under the provisions of [LSA] R. C. C. Article 3544 did not begin to run until the future event occurred or the right accrued. The royalty interest considered in the case of Vincent v. Bullock, supra, did not constitute a part of the consideration due by the lessee under a specific lease. The Court determined that it was ‘a real obligation which passed with the 'property into the hands of the present owner/ and that the ten-year prescriptive period as to that type of interest began to run at the time the right was reserved or acquired.
“Since the interest reserved or acquired by Samuel S. Hunter in 1915 is the same type of interest which was considered in the case of Vincent v. Bullock, the rules applied in that case must govern and determine the issues presented here.
“In the written brief submitted by counsel for The Hunter Company, Inc., the following statement is made: ‘The Hunter Company, Inc., concedes that if Samuel S. Hunter reserved a royalty or mineral interest only in his deed to La Prairie Maronne Companie, such reservation has prescribed and that it has no standing in Court.’ In view of that statement this Court assumes that the other grounds alleged in the answer of The Hunter Company, Inc., as a basis for its demands have been abandoned.
“This Court concludes, therefore, that the interest or right now in controversy constituted a royalty interest subject to the prescription of ten years, liberandi causa, that this prescriptive period began to run on October 30, 1915, that prescription was not interrupted or suspended, and that such interest or right has 'become extinguished by prescription.
“For the reasons herein assigned, judgment will be rendered in favor of Gulf Refining Company and La Prairie Maronne Companie and against The Hunter Company, Inc., rejecting the demands of said The Hunter Company, Inc., maintaining the exception or plea of prescription filed by La Prairie Maronne Companie, decreeing that the interest or right reserved or acquired by Samuel S. Hunter under or by virtue of the above-described deed dated October 30, 1915, has been extinguished by prescription, recognizing La Prairie Maronne Companie as owner of the interest now in dispute, directing the Clerk of Court to pay unto La Prairie Maronne Companie all of the funds deposited by petitioner in the Registry of the Court, after first deducting and paying from said funds all costs incurred herein, and condemning The Hunter Company, Inc., to pay unto La Prairie Maronne Companie the amount so deducted as costs of this proceeding.”

For the reasons above quoted the judgment of the trial court is affirmed.

HAMITER, J., concurs in the decree.


author: HAWTHORNE, Justice.

text:
    231 La. 1016
    Succession of Martha CERVINI, Widow of Paul BARAGONA.
    No. 43198.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rudolph O. Vorbusch, New Orleans, for appellant-defendant.
    Charles L. Rivet, New Orleans, formerly curator-ad-hoc and now attorney for the absent heirs of Paul Baragona.
    Philip P. Spencer, New Orleans, for defendant-appellee.
   HAWTHORNE, Justice.

This is an appeal from a judgment of the Civil District Court for the Parish of Orleans recognizing Paul Baragona, now deceased, as having been the natural child of Ethel Dora Baragona and her sole heir, entitled at the time of her death to the possession of all the property left by her. Appellees have filed in this court a motion to dismiss the appeal, in which they urge that the status of Paul Baragona was previously determined judicially in Succession of Cervini, 228 La. 1054, 84 So.2d 818, and that the question is now res judicata.

In the decision cited, the court was called upon to review a judgment of the lower court adjudging Paul Baragona an incestuous bastard and as such incapable of inheriting the estate of his mother, Ethel 'Dora Baragona. We found that the evidence presented in that case did not warrant an affirmation of that judgment, and accordingly reversed the judgment and remanded the cause to the lower court for further proceedings.

The motion to dismiss the appeal in the instant case is without merit. In the decision relied upon, the sole issue passed on by this court was the correctness of the trial court’s judgment decreeing Paul Baragona an incestuous bastard and therefore prevented by Article 920 of the Civil Code from inheriting as sole heir his mother’s estate. In the instant case the appeal is from a judgment-of the lower court recognizing Paul Baragona as having been the natural child of Ethel Dora Baragona and her sole. heir.

The motion to dismiss the appeal is denied.


author: HAWTHORNE, Justice. •

text:
    231 La. 1019
    J. H. RIGGS v. Ida C. LAWTON.
    No. 42815.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      D. C. Dickson, Shreveport, for plaintiff-appellant.
    Marion K. Smith, Shreveport, for defendant-appellee.
   HAWTHORNE, Justice. •

This is a suit by a lessee to recover from his lessor the $3,145.47 spent by the lessee to improve the lessor’s property; or in the alternative $4,000, which represents the amount the lessor’s property has increased in value because of these improvements.

During the winter of 1953-54, J. H. Riggs rented a room with board from Mrs. Ida C. Lawton of Shreveport, Louisiana, at a monthly rental of $90, and with her consent built an additional room and bath out of brick veneer onto Mrs. Lawton’s house to use as his office. During 1954 Riggs became dissatisfied with the arrangement and moved out, and in May of 1955 he brought this suit to recover the amount spent by him on the room and bath or the increased value of Mrs. Lawton’s property due to this addition. Mrs. Lawton answered Riggs’ petition by alleging, among other things, that she had no need for the office which he had built on her property while he was her lessee, that he had the right to remove the improvements provided he left her house in its original state, and she concluded by praying that his demands be rejected and that he be ordered to remove the improvements which he had constructed on her property.

After trial on the merits there was judgment for Riggs in the amount of $1,500 with interests and costs, upon payment of which Mrs. Lawton was to be decreed owner of the improvements. Riggs appealed to this court praying that his award be increased to the amount sought in his main demand. Mrs Lawton answered the appeal asking that the lower court judgment be reversed, and that Riggs be ordered to remove the improvements which he had made to her property. Pending appeal Riggs died, and the executor of his will, Ralph H. Riggs, was substituted as plaintiff-appellant in the case.

Mrs. Lawton has filed in this court a plea of estoppel, alleging that the legal representative of J. H. Riggs is now es-topped to claim the cost or value of the improvements or their ownership. The principal basis of this plea is that J. H. Riggs testified at the trial of the case on its merits in the court below that at his death the Lawtons “would inherit the house [improvements]”. We find no merit in this plea, nor does counsel for Mrs. Lawton cite any law applicable in support of it, and we know of none.

In the lower court and in brief filed in this court counsel for appellant seems to rely on the fourth paragraph of Article 508 of the Civil Code. Under the provisions of this paragraph the owner of the soil does not have a right to demand demolition of the works made by a possessor in good faith, but only has the choice either to reimburse the value of materials and the price of workmanship or to reimburse a sum equal to the enhanced value of the soil. However, this article has no application here. As said in Hammonds v. Buzbee, 170 La. 573, 128 So. 520, 521, quoting from Alexius v. Oertling, 13 Orleans App. 216, “ ‘Defendant is not entitled to the value of his improvements. He is not a “possessor in good faith,” for the sole reason that he is not a possessor at all. For those only are possessors who hold for themselves believing themselves owners. C.C., 3441. The term “possessor in good faith” is purely technical, and has no application to one who acknowledges another owner than himself. (C.C., 3441). And none but possessors in good faith, in this technical sense, can compel the owner to' reimburse the value of improvements placed upon the land. C.C., 508.’ ” (Italics ours.)

The articles which we think are applicable to this case are Articles 2719, 2720, and 2726. Under Articles 2719 and 2720 the lessee must return the thing leased in the same state in which it was when taken possession of by him, except, of course, for ordinary wear and tear and unavoidable accidents. Under Article 2726 the lessee has the right to remove the improvements that he has made to the thing let provided he leaves it in the state in which he received it, but if these additions be made with lime and cement, the lessor may retain them upon paying a fair price. However, the lessee cannot force the lessor to compensate him for the improvements which he leaves on the property. Pecoul v. Auge, 18 La.Ann. 614; Dreyfuss v. Process Oil & Fuel Co., 142 La. 564, 77 So. 283, 285; see Note, 23 Tul.L.Rev. 177(1948).

In the Dreyfuss case, supra, this court said:

“ * * * a lessee knows when he makes improvements that his right at the termination of the lease will not be to claim compensation for them, but only to remove them, in case it can be done, and yet the premises be left in the condition in which they were when leased, and if they have been made with lime and cement, in the event the lessor does [not] elect to retain them. C.C. 2726.” (Italics ours.)

In Superior Syndicate v. Willis, 155 La. 444, 99 So. 397, 398, it was said:

“As to R.C.C. art. 2726, it means no more than this: That the tenant has the right at the expiration of the lease, to remove all his improvements and additions, unless the lessor chooses to retain such as may be made 'with lime and cement,’ and pay the tenant the value thereof.” See Talley v. Alexander, 10 La.Ann. 627.

In the instant case the lessor shows and avers that she has no need for the office built by the lessee in connection with her home and that the improvements were made solely for his convenience. There is no evidence that the lessor has made any use of the additions, and she seeks to have the lessee ordered to remove them and asks that the house be left in the same state in which he received it. Since the lessor has thus elected not to retain the improvements and additions to her home, the lessee cannot recover their fair value.

The additions and improvements were made with Mrs. Lawton’s full consent and approval although for Mr. Riggs’ convenience. In fact, she even helped select the materials, was present during the work, approved the general plan of construction, and even paid, invoices for some of the materials from funds furnished by Mr. Riggs. In other words, she approved a change, to the extent of these improvements, in the state of the thing leased, and by doing so released her lessee of the obligation imposed by law of returning the premises in the same state in which he received them insofar as these improvements were concerned. Under these facts and circumstances the lessor is not entitled to an order for the removal of these additions and improvements at the lessee’s expense.

For the reasons assigned the judgment appealed from is reversed and set aside, and plaintiff’s demands are rejected at his costs.

HAMITER, J., concurs in the decree.

SIMON, J., absent.