author: THOMAS, Justice. DREW, Justice

text:
    CITY OF HOLLYWOOD, a municipal corporation under the laws of the State of Florida, et al., Appellant, v. John H. BAIR, individually, and d/b/a Bair Plumbing Company, a sole proprietorship, et al., Appellees.
    Supreme Court of Florida, En Banc.
    Feb. 13, 1957.
    Rehearing Denied March 21, 1957.

      Judson A. Samuels, Hollywood, for appellant.
    Jake I. Watson, Robbins & Cannova and Arthur J. Franza, Hollywood, for appellees.
   THOMAS, Justice.

This litigation was started 10 January 1956 by a group of individuals, corporations, and associations who are engaged in or interested in the plumbing business in the city of Hollywood. The plaintiffs prayed for a decree declaring Sec. 23 of Ordinance No. 1387 invalid and enjoining the city from issuing permits to septic tank contractors to do certain work defined in the ordinance.

After a thorough hearing the chancellor granted a permanent injunction and this appeal followed.

In the preamble to the ordinance, which was adopted 2 August 1955 as an emergency measure, it was stated that in obedience to a mandate of the people, a sanitary sewer system “for various and sundry sections” of the city was under construction and that it was necessary to promulgate rules regulating the connecting of the sewer lines of existing homes with the new system. The ordinance contains twenty-six sections setting up a sanitary code and dealing generally with conditions under which the system could be used and connections with it made.

There is no occasion to detail the many provisions of the ordinance as the attack was concentrated on Sec. 23. It was provided in that section that all work of connecting existing drains with the new sewers should be done by duly registered plumbers, but that during the first year of operation of the system this work could be performed by “any person, firm or corporation licensed in the City” to install septic tanks. There were two exceptions: (1)-connections made with cast-iron soil pipe were required to be made by licensed plumbers, and (2) the main drains of buildings, the construction of which was begun after the new system came into use, were required to be installed by licensed plumbers.

Under Sec. 469.01, Florida Statutes 1955,. and F.S.A. no one can engage in the business of plumbing, in cities of 7,500 population or more, without a certificate, and by Sec. 469.05, Florida Statutes 1955, and F. S.A., cities in that category are required to establish rules regulating plumbing and such work is forbidden unless a permit is-issued authorizing it.

The purpose of Sec. 23, supra, was to give septic tank contractors, who themselves must qualify to do their work, the right to make connections with the sewer system and unquestionably its enactment was motivated by the enormity of the task of switching the sewage from 3,200 houses using septic tanks to the new sewer system within the 90 days fixed by the ordinance as the period within which the change-over was required to be made, computed from the time the new sewer line became accessible.

As the appellant points out Chapter 469, Florida Statutes 1955, and F.S.A., contains no definition of “plumbing” and as-the law places upon municipalities of a stated population the duty of promulgating rules, it seems logically to follow that these municipalities may by the establishment of such rules define the business activities to which they apply. If the word “plumbing” is given a definition too broad, it might, as appellant suggests, embrace even the laying of trunk and lateral lines and, certainly, it would not be reasonable to hold that contractors engaged in that work had to be qualified plumbers.

The able chancellor came to the view the appellees now advance. He recited the certification by the Bureau of the Census, 19 May 1955, that Broward County had a population of 159,052 according to the returns of a special census taken about 7 April 1955. This was the census taken to determine if the population was such that the appointment of additional circuit judges was authorized. He then referred to Chapter 29633, Laws of Florida, Acts of 1955, F.S.A. § 26.16(2), containing the provision that “The official count of the population of the counties of Broward and Palm Beach [the counties comprising the Fifteenth Judicial Circuit where the census was being taken to determine whether additional judges could be appointed under Sec. 45 of Article V of the Constitution, F.S.A.] as made and taken in the year 1955, or subsequent years thereto, whichever census is the last, by the Federal Bureau of the Census, or the Commissioner of Agriculture of the State of Florida, as certified to the respective Boards of County Commissioners of said counties, is hereby provided for and shall be the official census of the inhabitants of each county.” (Italics supplied.)

The chancellor concluded that Sec. 553.-12, Florida Statutes 1955, and F.S.A., pertaining to the exclusion of certain counties from its operation having been amended in 1955 to provide for exclusion “according to the last official census,” and the special census having been declared an official one, Broward County, in which Hollywood is situated, therefore, came under the act which is called “ ‘Florida plumbing control act of 1951’ ” F.S.A. § 553.01 et seq. and the definition of plumbing appearing in that act applied, so the septic tank contractors were engaged in plumbing without qualifying as plumbers. And the chancellor further applied the sanitary code adopted in accordance with Chapter 381, Florida Statutes 1953, and F.S.A., because of the provision in Sec. 553.06, that “Chapter VIII of the Florida state sanitary code * * * is hereby adopted as the state plumbing code and all installations * * to plumbing shall * * * be performed in accordance with its provisions.”

So, by linking the relevant provisions of Chapters 381, 469 and 553, supra, he came to the view that what the septic tank contractors were doing was plumbing which they, qualified only to work with septic tanks, could not lawfully do. But when we examine Chapter VIII, supra, we find only definitions and we discover no regulation with reference to the manner in which plumbing shall be done or the qualifications of those who may do it.

From the record before us, we do not know whether any rules have been adopted under Sec. 381.031(1) (g), Florida Statutes 1955, and F.S.A., that would supersede “ordinances * * * enacted by municipalities,” Sec. 381.071, Florida Statutes 1955, and F.S.A., on the qualifications of plumbers, so it seems we get no assistance from Chapter 381 in deciding this litigation.

As we have said, the route to Chapter 381 lay through Chapter 553 and the applicability of that chapter must depend upon the effect of Chapter 29633, all supra, to transform the census taken in two counties for a certain purpose into a census that would take Broward County out of the exemption provision of Sec. 553.12, supra. We think this was not accomplished. Under Sec. 5 of Article VII of the Constitution the legislature was relieved of the duty of securing an enumeration of the inhabitants of the state and by that part of the Constitution each decennial federal census beginning with the one of 1950 was declared to be a state census and to “control in all population Acts and constitutional apportionments, unless otherwise ordered by the Legislature.”

We do not find in this provision authorization for legislative enactment, deciding retrospectively that a census taken in two counties for the purpose of determining whether or not the appointment of additional circuit judges was authorized, could be adopted as a census to bring one of the counties into the field of operation of a population act. See Sproul v. State ex rel. Smith, 153 Fla. 892, 16 So.2d 109.

After wending our way through the three chapters, we conclude that we deal only with definitions after we leave Chapter 469, supra, and until we return to it, and that we must, in the present state of the statutes and the information we gather from the record, rely on that chapter to decide whether or not the city commission could validly enact Sec. 23 of Ordinance 1387, supra.

As we have indicated, the persons installing septic tanks are required to pass an examination before they can make their installations, and their work must pass inspection.

We note in Sec. 469.04, Florida Statutes 1953, and F.S.A., that those engaging in plumbing are classified as master plumbers and journeyman plumbers. Both classes, as well as the persons installing septic tanks, doubtless perform work that constitutes plumbing under the broad, general understanding of that word. To repeat, all are examined before being permitted to engage in the work, and the work of all is supervised by the city.

It seems to us that the city may recognize all three under the power granted by Sec. 469.05, supra, and that it would not be logical to hold that the septic tank installers should be isolated, that the work done by them should be declared plumbing, and that they, therefore, should be prevented from making the connections under the limitations of the ordinance.

We assume that public health is being safeguarded by the municipal authorities through examinations given septic tank contractors as well as plumbers and by the supervision of their work, though the work in extent and importance is not the same; and that a septic tank contractor need not be as fully trained in the work of plumbing as one who operates in all sectors of that field.

We must, although relunctantly, disagree with the chancellor and reverse the decree.

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

HOBSON and DREW, JJ., dissent.

DREW, Justice

(dissenting).

I think the chancellor below was entirely correct in the conclusion he reached in this litigation. His decree was rendered on the 7th day of February, 1956. On May 25th, 1956 this court handed down the opinion in City of Coral Gables v. Seiferth, 87 So.2d 806. The Coral Gables case, supra, I think presents an identical situation to that presented in this appeal and should be controlling here. It may be suggested that because in the Coral Gables case there was a stipulation by the parties to the ef.fect that the work which the ordinance authorized any licensed septic tank contractor to do was plumbing that that case is not controlling. With this premise I cannot agree. If the work is actually plumbing, as I am convinced it is, it doesn’t make a particle of difference whether that fact is established by a stipulation or by proof.

I, therefore, most respectfully dissent and I would affirm the decree appealed from.


source: Caselaw Access Project

author: THOMAS, Justice.

license: Public Domain

text:
    W. T. COX, as Trustee, Joe Priest, Inc., Joe Priest and Maxine Priest, C. M. Dunham, M. D. Andrews, P. C. Crapps, Jr., L. M. White and Harlow Land, Appellants, v. W. A. BELLAMY and wife, Lola C. Bellamy, Appellees.
    Supreme Court of Florida, Division A.
    Feb. 13, 1957.
    Rebearing Denied March 21, 1957.
    Lazonby, Dell, Graham & Mills, Gaines-ville, for appellants.
    Ed W. Harris, St. Petersburg, for ap-pellees.
   THOMAS, Justice.

The appellees, owners of certain property, filed their bill of complaint against the appellants in which they sought a decree cancelling an option, two assignments of the option, and an agreement which appellants described as a renewal of the option. The appellants answered and, by counterclaim, sought to force the appellees to carry out the agreement to sell to them.

By his decree the chancellor cancelled all the instruments.

The appellees agreed to sell certain lands to the appellant W. T. Cox, trustee for a corporation later to be formed, and an option for the purchase was executed and exchanged for a payment of $1000 in cash. In the instrument it was provided that if title to more than 15% of the lands was not insurable, the sellers were to bring suit to quiet the title within a reasonable length of time, not to exceed one year. The trustee was to bear the expense of the suit but he was granted the privilege of accepting the title in its then condition, by warranty deed, if it developed that the title could not be cleared within the prescribed period.

It was agreed that the option should be effective for a period of six months unless it should be necessary to quiet title in which event the life of the option would be extended for that purpose for a reasonable time but not to exceed one year from its date.

Appellee, W. A. Bellamy, was advised about 19 March 1954 that an examination had disclosed that suit to quiet title was necessary and he replied, in April 1954, that he expected to close the deal and receive the funds within one year of the date of the original option indicating that he took no exception to the tardiness of the notice to him. The option was dated 15 September 1953.

We summarize what we have just written. The .option was to expire 15 March 1954 unless the suit was necessary, a question obviously to be decided by the vendee, and if the suit was found by him to be necessary, the sellers, in effect, granted themselves an enlargement of the time so they could institute and conclude the suit, but restricted themselves to the period that would expire 15 September 1954.

It was provided in a preceding section that if such necessity arose, the sellers would have a reasonable time, not to exceed one year, to “bring” the suit. The provisions of the two sections, read literally, are ambiguous, one being that the suit should be brought within a year, from a date not specified, the other being that the title be quieted, that is that the suit should not only be instituted but terminated before 15 September 1954. It has been seen that the notice of the need of the quiet title suit was given after the original option period had expired but there was no objection on this point and appellants’ contention that the time was extended to 15 September 1954 because of one optionor’s reply that he expected the funds to be paid and the deal closed by that date, is well founded.

On 9 August 1954, but 37 days before the expiration of one year computed from the date of the option, the optionee, W. T. Cox, Trustee, assigned the instrument to Joe Priest, Inc., and on 6 November 1954 the sellers entered into an agreement with that corporation and with Joe Priest and his wife, Maxine Priest, which we will presently analyze.

. Meanwhile the sellers, appellees, did not have the title quieted and so far as we know more than 15% of it is still uninsurable and sum of $1000 still reposes in their pocketbooks.

Now to the agreement which we will dub the Bellamy-Priest contract. It was recognized by the parties that title to the tracts selected in Townships 18 and 19 of Range 16 was ,of such condition that a proceeding to quiet title was imperative and that the suit would “require considerable time.” Under this contract title was to be quieted by the buyers and a “reasonable” time was stipulated for the purpose. There were many provisions about sales and distribution of proceeds. With reference to a consideration for the agreement, it was stated that the parties “each for and in consideration of the premises and the sum of ten dollars, to each in hand paid by the other” entered it.

It was stipulated, too, that all the parties desired to sell immediately all the land in Range 17, and the price per acre, manner of distributing the proceeds and terms of payment were specified.

The impression is first gained that the principal concern of the parties was the great length of time that would be required to make marketable the title to lands in Townships 18 and 19 of Range 16 while tracts in Range 17 could be quickly sold then, later in the contract, there appears the provision that the parties of the second part should, at their expense, quiet title to lands in Range 17 as well as Range 16. although the work of clearing title to lands in 16 was recognized as being “particularly” heavy. We gather from this language that although some of the land in Range 17 could be early sold, the title to the rest would have to be made marketable by litigation. Finally we find a repetition of the commitment that all parties were to cooperate in effectuating speedy sales of the property in this range.

In their bill of complaint, the appellees alleged that they had received no money from the optionee, a statement that is repudiated in their brief filed here, that the optionee had done nothing at all to comply with the obligations placed upon him by the option and that he had clouded the ap-pellees’ title, supposedly by recording the option, so that it had become necessary to file the instant suit. They recognized the kinship between the option and this agreement by alleging that the original option to W. T. Cox, Trustee, “may have been extended or renewed” by the Bellamy-Priest agreement. No money had been received by them for this agreement, so the appellees charged, and the vendees had demonstrated by subsequent actions that they had had no intention to perform. They asserted that the vendees had agreed to sell certain lands immediately but had not, and that they had failed to quiet the title to various parcels or tracts involved within a reasonable time which had elapsed.

The appellees next undertook to link the option and the agreement by averring that the original optionee had agreed to secure title insurance but that neither he nor any of the defendants had applied for it. Further, they averred that, under the option the optionee was obligated to release, satisfy and discharge the option if he did not exercise his privilege under it.

On 15 December 1954, Joe Priest, Maxine Priest and Joe Priest, Inc., assigned both the option and the Bellamy-Priest contract to Joe Priest, C. M. Dunham, M. D. Andrews, P. C. Crapps, Jr., L. M. White and Harlow Land so all these are now appellants.

From the unfortunate composition of these instruments it is not difficult to conclude that the title to the land of the owners is now badly in need of quieting, if it was not before, but it is not so easy to decide that the appellees were entitled to relief in view of their own failure to carry out their obligations under the option they executed to W. T. Cox, Trustee. After executing an instrument containing the strange provision that they, themselves, would be limited to a certain period for quieting the title, if the buyer decided that would be necessary, they seem to have done nothing to that end and were in default when their optionee assigned to Joe Priest, Inc., and others.

The whole transaction was further complicated by the new agreement with the assignees by which the obligation to bring the suit was transferred to the buyers from the sellers. As we understand the record, the buyers under the second instrument assignees of the option, did nothing toward clearing the title.

The terms of option were conflicting and ambiguous within themselves and when the terms of the option now transferred to the second parties of the Bellamy-Priest contract are read with the provisions of that agreement, the confusion is aggravated.

The chancellor found that the original optionee, W. T. Cox, had failed to perform his obligation to close a contract with a title insurance company, but we are unable to attach much importance to such apparent default in view of the report by the op-tionee to the optionors that suit to quiet title would be necessary and the acknowledgment of the report and the reply emphasizing the expiration date of the option in any event. Furthermore, the option was assigned a few days before its expiration and it seems to us that in view of the assignment and later contract between the optionors and the assignees, this litigation must be determined on the bases of the contract and the facts that developed after it was executed. There is no occasion further to discuss the effectuality of the option at the time it was assigned except to say that whatever interest was left at that late date was by the terms of the later contract merged in it.

After concluding that neither the original option, the assignment of it, nor the last assignment by Joe Priest, Maxine Priest and Joe Priest, Inc., affected the title to the property of appellees, the chancellor concentrated on the Bellamy-Priest contract. In essence he thought it had been definitely shown that the sellers had been the “victims of misrepresentation, deceit and fraud” and he excoriated the attorney who had prepared the contract for the buyers and upon whom, the chancellor thought, the sellers relied to their grief.

Inartificially as the contract appears to have been drawn, we do not find support in the record for the charge that the apparent inexpertness of the author was studied, or purposeful. Nor do the actions of the parties afterward convince us that any advantage was taken of the sellers by the buyers. It seems to us that the indifference of the latter was matched by the lethargy of the former. There is evidence, so far as we know uncontradicted, that repeated attempts were made by the buyers to close the deal and that their messages to that end were met with excuses why the sellers could not meet them for the purpose. The last of these messages was delivered 15 November 1955 and brought the reply from W. A. Bellamy not to worry about the matter that he was going to close the deal, that for one reason or other he had been unable to meet the appellants but he was coming. Two days later he brought this suit.

We conclude that from the very nature of the transaction and the character of the contract in which the option seems to have been merged, the appellees were not in position to cancel or rescind by the process of bringing the suit/ They possibly once possessed the right to bring the matter to an end because of the lapse of a “reasonable time” but to do so they should have first given the. appellants notice of such intention. Realty Securities Corporation v. Johnson, 93 Fla. 46, 111 So. 532; Savage v. Horne, 159 Fla. 301, 31 So.2d 477.

We must disagree with the chancellor and reverse his decree with directions to proceed in accordance with the views we have expressed. Reversed.

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


author: HOBSON, Justice.

text:
    Sam BERGER, Appellant, v. A. BEYERLE, as Secretary of Jafra Steel Corporation, a corporation, Appellee.
    Supreme Court of Florida, Special Division A.
    Jan. 23, 1957.
    Rehearing Denied March 6, 1957.

      Herman I. Bretan, Miami, for appellants.
    Morton B. Adams and Charles B. Moon, Miami, for appellee.
   HOBSON, Justice.

At a sheriff’s sale, appellant, Sam Berger, purchased 3,450 shares of capital stock of Jafra Steel Corporation, which were then registered on the books of the -corporation in the name of Donald W. Stewart, a judgment debtor. Thereafter, appellant requested that the secretary of the corporation, appellee herein, register the transfer of the stock upon the books of the corporation. This request was refused, and appellant petitioned for a writ of mandamus to compel the secretary, as respondent, to make the required entry.

Appellant thus functioned entirely in accordance with the proper procedure in a case of this nature. F.S., Section 55.31, F.S.A., pertaining to a sale of corporate stock under execution, provides in part that the officer conducting the sale shall execute to the purchaser a bill of sale of the shares of stock,

“and such bill of sale shall vest in the purchaser all the title of the judgment debtor; and upon the presentation of such bill of sale to the secretary or other officer controlling the transfer books of such coporation, it shall be his duty to transfer the said stock from the judgment debtor to the purchaser.”

We have held that under the provisions of this section the transfer officer of the corporation becomes an officer of the court for the purpose of consummating execution of the judgment of the court, and that because of this statutory official status mandamus will lie to compel the transfer officer to perform his official duty. Mixson v. First National Bank, 102 Fla. 468, 136 So. 258. This analysis comports with common-law principles. See 13 Am. Jur., Corporations, Section 364, and cases cited therein.

Appellant alleged in his petition that he duly presented the bill of sale and demanded the transfer of the stock, and this is not contested. It therefore appears that the alternative writ was sufficient as a basis for the relief sought, absent a valid defense.

Answering the alternative writ, the respondent-appellee admitted the basic facts alleged in the petition, which were the facts indicated above, but made a number of affirmative allegations. These allegations are so prolix that it is useless to reproduce them here, and they are so vague and replete with conclusions that it is almost impossible to summarize the factual material alleged. Exhibits appended to the return partook of the same character.

No testimony was offered by either party. Ultimately, appellant moved for peremptory writ of mandamus notwithstanding the return, and the trial judge entered final judgment on the record before him, which consisted of the pleadings and the exhibits filed with the return. In this final judgment the court denied the peremptory writ of mandamus as to 2,500 shares of stock and awarded it conditionally as to 950 shares.

Appellant contends that the trial court erred in sustaining the defenses alleged by the appellee. Since we are confronted with the identical record considered by the trial judge, no testimony having been taken, we are in as good a position as he to review the facts of the case.

From the affirmative material presented in and with the return of the respondent-appellee, it seems that there is a corporation in existence known as Jafra, Incorporated, and that, for some reason which is not clear, one share of Jafra, Incorporated “represents” one hundred shares of Jafra Steel Corporation. This is alleged to have come about “through corporate reorganization and change.” It would appear at first glance that Jafra, Incorporated, is a holding company or parent corporation which holds shares of Jafra Steel Corporation, but appellee takes the position in its brief that this is not the fact and that Jafra, Incorporated, and Jafra Steel Corporation “are not separate corporations.” If they are not separate corporations they must be the same corporation, but we find this nowhere positively alleged in the return.

The relationship of these corporations, or this corporation to itself, is relevant only because appellee contends that certain shares of Jafra, Incorporated, are pledged to secure other debts of the judgment debtor, that appellant knew that they were pledged when he purchased the shares of Jafra Steel Corporation, and that since the pledged shares “represent” some of the shares which appellant bought, he is not entited to have the purchased shares registered in his name. This was substantially the reasoning of the trial judge in holding that 2,500 shares of Jafra Steel Corporation need not be transferred on the books of that corporation.

If, as appellee suggests in its brief, Jafra Steel Corporation is a new corporation which has resulted from the reorganization of Jafra, Incorporated, it is difficult to understand why the pledged shares of Jafra, Incorporated, were not recalled when the shares of Jafra Steel Corporation were issued: On the basis of the record before us, we are at a loss to comprehend what sort of legal - entity it is which can pledge certificates representing some of its shares and permit other certificates, representing the same shares, to remain outstanding and in circulation.

One statement contained in the material filed by the respondent below appears in an affidavit by one J. W. Stewart who says that he is a creditor of the judgment debtor, Donald W. Stewart, that the debt .is secured by a certificate for 25 shares of ■common stock of Jafra, Incorporated, and

“That through corporate reorganization and change said certificate of stock entitles the holder of the same to 2,500 shares of the Common Stock of Jafra Steel Corporation, a Florida corporation, and that said shares of stock are a part of the stock levied upon and advertised for sale as above alleged.”

This is the only suggestion we can find in the record that some of the pledged shares actually cover the same interest as the shares which appellant purchased at the sheriff's sale. But this statement in the affidavit is a mere conclusion, and it still leaves us with the perplexing problem of a single property interest which can be represented simultaneously by two sets of certificates, both of which appear to be in circulation.

We conclude that the affirmative defenses sought to be presented by the ap-pellee were insufficient as a matter of law, and, no reason appearing why the peremptory writ should not be granted, the judgment appealed from must be, and it is hereby, reversed and the cause remanded with directions to issue the peremptory writ prayed for.

It is so ordered.

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

On Petition for Rehearing

Appellee, as petitioner, now says, for the first time, that “Jafra Steel Corporation was not a new corporation but the same corporation as Jafra, Incorporated, which had been reorganized and changed”. From the pieces of the puzzle which are supplied in the petition for rehearing, some of which petitioner admits are “not in the record of this case”, it now appears to be suggested that no certificates were outstanding representing the 3,450 shares of Jafra Steel Corporation which the appellee Secretary certified, in this record, were owned by Donald W. Stewart, the judgment debtor, and fully paid. It was upon this certificate that the bill of sale issued by the sheriff at the execution sale was predicated. Instead, the judgment debtor was owner and pledgor of certificates representing shares in the differently named corporation, Jafra, Incorporated (we hesitate to call it “the old corporation” or “the predecessor corporation” because appellee would say that this is not so, but we are safe in observing that it had a different name and capital structure from Jafra Steel Corporation, for this is admitted by appellee). These certificates for shares in the differently-named-and-capitalized corporation had not been exchanged for stock in Jafra Steel Corporation before the sheriff's sale.

But both the sheriff and the appellant Berger were entitled to rely upon the certificate executed by the appellee Secretary, and none of the cryptic statements shown by this record to have been made regarding Jafra, Incorporated, or its stock could possibly have put Berger on notice of any matters pertaining to Jafra Steel Corporation. We do not anticipate that the concept of “caveat emptor” prevailing at a sheriff’s sale is pervasive enough to sanction a transaction possessing the incidents of this one.

The appellant Berger was and is entitled to “all the title of the judgment debtor”, F.S. Sec. 55.31, F.S.A. at the time of the execution sale. In this connection, we also call the attention of the parties to F.S. Sec. 614.15, F.S.A. which reads as follows:

“Shares of stock may be attached or levied upon, under execution, as now provided by law, and any sale under attachment or execution, as now provided by law, shall be recognized by the corporation in which such shares were so sold upon production of a bill of sale duly executed by the officer making such sale and a new certificate shall be issued to the purchaser at such sale.”

Our judgment, pronounced in the original opinion, is without prejudice to Berger to proceed under this section to obtain the certificates (if, as appellee suggests, he does not have them), or, if performance under this section has been rendered impossible by the activities of the appellee Secretary as self-appointed adjudicator of the conflicting claims of Berger and the Stew-arts or other pledgees of stock in Jafra, Incorporated, our judgment is without prejudice to Berger to proceed against the responsible parties as he may be advised. As modified herein, our original opinion is adhered to, and the petition for rehearing is denied.

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


author: DREW, Justice.

text:
    Joseph O’CONNELL, Appellant v. Bessie MASON, Administratrix of the Estate of Philip Mason, Earl MacAdam, and Security Trust Company, a Florida corporation, Appellees.
    Supreme Court of Florida, Special Division B.
    Feb. 27, 1957.
    Rehearing Denied March 25, 1957.
    Frederick J. Ward, Miami, for appellant.
    Rinehart & Gibbs, Miami,, for appellees..
   DREW, Justice.

A motion has been duly made .in this cause to dismiss this appeal because the plaintiff in the court below, the appellant here, has failed to pay the costs that accrued in and about the suit up until the time the appeal was taken and which have been specifically taxed against him.

A certified copy of the decree before us provides “The costs of this cause be and they are hereby taxed against the plaintiff in the sum of $1750.75, representing the Special Master’s fee in the amount heretofore fixed and the Court Reporters’ charges for attendance and preparation of the original record of $560.-50, which costs the plaintiff is hereby directed to pay forthwith(Emphasis supplied.)

Beginning as early as 1832 and extending without interruption to modem times, the statutes of this State have provided that “No writ of error shall be granted to the original plaintiff in any suit unless said plaintiff shall first pay all costs which may have accrued in and about the said suit up to the time when said writ of error shall be prayed.” For the history and source of this act, see notes following Sec. 59.09, F.S.A. As long as the above quoted statute was in effect, this Court in numerous instances dismissed writs of error where it was made to appear by timely motion that the provision of such statute had not been complied with. A list of these cases is readily available in the an- ■ notations following Sec. 59.09, F.S.A. and a further citation here would serve no useful purpose. In 1945 the original act ■was amended to provide “No appeal may be taken by the original plaintiff in any ■suit or proceeding until he shall pay all costs which have accrued, in or about the suit, up to the time the appeal is taken.” Ch. 22854, Sec. 9, Laws of Florida 1945. Since the amendment to the act in 1945, we have construed it to apply to all appeals taken to this Court whether chancery or common law and even to appeals taken to the circuit court from courts over which such circuit courts have appellate jurisdiction. As to the latter proposition, see Hale v. Martin, Fla.1954, 76 So.2d 279. As to the former, see the annotation following Sec. 59.09, F.S.A. 1955 Cumulative Animal Pocket Parts.

Realizing the hardship that the enforcement of this statute sometimes imposed upon original plaintiffs in appeals and in order to ease the burden on the original plaintiff and make a review possible without the prepayment of costs, when the new rules were adopted by this Court, effective March 15, 1955, 31 F.S.A., we included therein Rule 29 which tracked Sec. 59.09, Florida Statutes 1953, F.S.A., but added a proviso in which it was stated “provided, that nothing contained herein shall require the prepayment of costs by the original plaintiff when he has assigned as error the taxation of costs and has superseded the order, judgment or decree specifically taxing the same.” We have consistently held that this statute is for the benefit of the defendant and a compliance with it may be waived by him. See Berg v. New York Life Ins. Co., Fla.1955, 81 So.2d 630. Payment is not a jurisdictional prerequisite. Berg v. New York Life, supra. It may well be that in this case the enforcement of the provisions of the statute and our Rule 29 in which we greatly liberalized the statute for the protection of the original plaintiff may work a hardship on the original plaintiff in this case but there is nothing that we can do about it. A simple reading of the rules of this Court and the statute and the numerous cases construing the statute and this rule would have prevented the situation in which the plaintiff now finds himself enmeshed. He did not assign as error the taxation of the costs as authorized by the rule and supersede the same. He admittedly did not pay the costs which were specifically taxed against him in the final decree.

So far as the appellee is concerned, there is nothing in this record upon which we could support a statement or reach the conclusion that the requirements of the statute and rule have been waived. The costs were assessed in the final decree of 9 November 1956. On 21 December 1956 the plaintiff filed his notice of appeal. On 31 December 1956 plaintiff filed his assignments of error and while the rule of this Court, 39, subd. 1, allows appellee until the day he is required to file his brief to file a motion (which in this case would be 20 March 1957), appellee filed his motion to dismiss on the grounds above stated on 10 January 1957.

We have no alternative except to grant the motion to dismiss the appeal and it is so ordered.

TERRELL, C. J., and ROBERTS and O’CONNELL, JJ., concur.


author: HOBSON, Justice. PER CURIAM.

text:
    Susye Belle WELLS, as Administratrix of the estate of H. H. Weils, deceased, and Susye Belle Wells and Mary Sue Wells Nolen, as sole surviving heirs of H. H. Wells, deceased; A. L. Wells; and C. B. Dunn, Appellants, v. Jefferson THOMAS, if living, and if dead, his unknown heirs, devisees and grantees; Anne Hartley Atkinson Gailliard, as the sole surviving heir at law of W. M. Atkinson, deceased; Mrs. Alfred Tyler, John Poe Tyler, Rob Tyler, Anne Tyler Pierpont, sole surviving heirs at law of Alfred Tyler, Jr., Grace E. Savage and Rosemary Savage, heirs at law of W. T. Savage, deceased, and the unknown heirs of W. T. Savage, deceased; F. Willard Hyslop, if living, and if dead, his unknown heirs, devisees and grantees; Adele B. Harries, Gertrude Harries Willis and Bowden F. Harries, heirs at law of G. M. B. Harries, deceased; T. J. McSween; Almon L. Denton; Gordon Denton; and Noah Denton, Appellees.
    Supreme Court of Florida. Division A.
    Dec. 19, 1956.
    Rehearing Denied Jan. 10, 1957.
    Supplemental Opinion March 4, 1957.
    See also 89 So.2d 259.
    J. M. & H. P. Sapp, Panama City, and James N. Daniel, Chipley, for appellants.
    Cornett, Duncan & Leath, Panama City, John S. Rawls, Marianna, for appellees.
   HOBSON, Justice.

This is an appeal by the plaintiffs from a summary final decree for defendant-ap-pellee Willard Hyslop.

This litigation had its inception in a Suit to quiet title to certain lands acquired by the plaintiffs under a tax deed. In addition to setting up -the tax deed under which title was claimed, the complaint also alleged certain conveyances dated before the tax deed, which purported to vest record title to the lands in the plaintiffs. In his answer, defendant Hyslop attacked the tax deed under which the plaintiffs claimed on the grounds that he had not been notified of the application for such deed, although he had been the last person paying taxes x>n the land, and that the description of the property contained in the public notice was ■insufficiently definite. Hyslop set up a tax •deed under which he claimed title to the property and prayed that his title be quieted .thereunder.

The chancello'r granted defendant’s motion for summary judgment, and plaintiffs appealed. We held Wells v. Thomas, 78 So.2d 378, inter alia, that Hyslop had not made a sufficient showing to overcome the prima facie casé of regularity in the proceedings leading to the issuance of the tax deed to .plaintiffs. The case was reversed and remanded;

On ' remand,1 defendant Hyslop filed a pleading designated “second amendment to amended an'swer” wherein he attacked plaintiffs’ tax ■ deed on two grounds, only one of which survived plaintiffs’ motion to strike..:. This “surviving”' ground was that the first publication of notice of application for ’tax deed by the plaintiffs was less than twenty-eight days prior to the date upon which the tax deed was issued by the clerk of the circuit court. Defendant again moved for summary final decree, based upon this 'oontention, and the motion was granted. .The resulting summary final decree is here appealed from.

It is contended by appellants that it was error for the chancellor to permit Hyslop’s pleading to be amended after the mandate of this court had been handed down, só as 'to raise new issues. From the facts of the present case, we find no error in this ^ruling by the chancellor. The case was remanded for further proceedings not ■inconsistent with the views we had expressed, and Hyslop was entitled, under our opinion, to make any showing he could to overcome plaintiffs’ prima facie case-of regularity in the proceedings whereunder plaintiffs acquired the tax deed. He did nothing more than plead specifically what he was entitled to prove under our mandate in connection with an issue which we had found in the case as originally pleaded.

It is further argued by appellants that the chancellor erred in ruling that publication of a notice of application for tax deed under which they claim was defective for failure to comply with F.S. Section 194.16, F.S.A. It is undisputed that the first publication was on May 8, and the sale was held on June S, 1944. The dates of publication were May 8, IS, 22 and 29, 1944. Counting both the day of the first publication and the day of the sale, the period totals twenty-nine days. In Ozark Corporation v. Pattishall, 135 Fla. 610, 185 So. 333, 336, in construing F.S. Section 194.16, F.S.A. (which was Section 2, Chapter 17451, Acts of 1935) we said in part:

“It is admitted that the language ‘once each week for four successive weeks’, as used in this statute, means that there shall be twenty-eight days between the first publication and the sale day. Myakka Co. v. Edwards, 68 Fla. 372, 67 So. 217.” (Emphasis added.)

Later in the opinion) however, we clarified and enlarged this statement as follows:

“The notice may be published once each week throughout four consecutive’weeks, the first publication at least twenty-eight days prior to the sale day, each publication exactly one week apart and the last publication-not more than thirty days from the sale day, and the notice would be published four times. So construed, every provision of the statute is given full effect and there is no conflict whatever between them. This Court is of the opinion that this is the correct construction.” (Emphasis added.)

It will be noted that our first statement, which used the word “between” appeared to require one day more than our second and final statement, which used the words “prior to”. Myakka Co. v. Edwards, which we cited for support of our first statement in the Ozark case would appear to support' our last statement rather than our first. The chancellor below apparently followed our first statement, and we can understand the source of his ruling. The latter statement, however, represents our latest word on the subject in connection with the construction of this statute and, we think, is controlling here. Further, we held in Jacksonville Land Holding Co. v. American Oil Co., 136 Fla. 491, 188 So. 809, 812, that “if a notice is required to be given a stated number of days prior to a day to be specified that time should be computed counting and including the day notice is given and excluding the specified day of performance.” Under these rules, May 8th is counted and June 5th is excluded. The first publication was, therefore, twenty-eight days prior to the day of sale, 'as required by F.S. Section 194.16, F.S.A., supra. It follows that the notice given was not defective and that it was error to grant summary judgment for the defendant Hyslop upon this ground.

A further point is raised by appellants herein, but with the view we take of the case it is unnecessary to consider it. The judgment appealed from must be, and it is hereby, reversed with directions to enter judgment for the plaintiffs as against the defendant Willard Hyslop if in the opinion of the Chancellor there remain no issues of fact to be tried, otherwise the cause will proceed in accordance with the-law of this case as set forth herein and as established by our opinion in this cause published in 78 So. 2d 378.

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

Supplemental Opinion

PER CURIAM.

By motion, counsel for appellee F. WiT-lard Hyslop suggests that we overlooked*, appellee’s petition for clarification which' was filed jointly with the petition for rehearing. Upon a careful re-examination -of the file herein we have concluded that the-wording of our order entered in this cause on January 18, 1957 may have misled counsel for appellee Hyslop. The petition for-clarification was not overlooked and it was-intended that it, as well as the petition for rehearing, be denied.

It is thereupon ordered that said order' heretofore entered in this cause ón January 18, 1957, be amended to read as. follows :

On consideration of the petition for rehearing and the petition for clarification filed by counsel for appellee, it is, ordered by the court that each of said petitions be, and both of them are, hereby denied.

TERRELL, C. J., and HOBSON*' DREW and THORNAL, JJ., concur.


author: ROBERTS, Justice. O’CONNELL, Justice

text:
    Francis Arthur PFLEGL, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida, En Banc.
    Feb. 20, 1957.
    Rehearing Denied March 21, 1957Í

      Walter E. Gwinn and William M. Burton, Jr., Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellee.
   ROBERTS, Justice.

The appellant was convicted in the criminal court of record of Dade County, Florida, of breaking and entering a filling station with intent to commit a felony and sentenced to a term of three years, which judgment is now before us for review. In substance, the appeal poses the propriety vel non of the arrest of the appellant and subsequent search of his apartment.

Where, as here, a series of filling station robberies has occurred and the officers at 5:45 a. m. are informed by a passing motorist that a man had just been seen walking toward a filling station with a crowbar in his hands, we think the circumstances are such as to require the officers to make an investigation. The stopping of appellant’s car in the circumstances recounted in the dissenting opinion was, in our opinion, lawful; and when they saw on the back seat of the car an adding machine, several of which had been reported stolen on the night in question and previous nights, such, together with the other circumstances, was sufficient to show “probable cause” that the appellant was implicated in the robberies, justifying his arrest without a warrant. Gaskins v. State, Fla., 89 So.2d 867; also Cf. Brown v. State, Fla., 91 So.2d 175.

The following excerpts from the testimony are significant:

“ Q. Your name and official position? A. Dari L. White; policeman, City of Miami.
* * * * * *
“ Q. Tell the Court the circumstances leading up to the arrest, in detail. A. We were patrolling down Northeast First Avenue and at approximately Fifth Street stopped for a red light and a motorist passed and told us he had seen a man in a 1949 Ford or a Ford Sedan attempting to go back in a car and he had a glove on and was carrying a crowbar.
******
“ Q. What I am trying to find out here — at the time you looked in the back seat of the automobile, had you had a report that an adding machine had been stolen? A. We had, that there had been a report of an adding machiné stolen.
******
“Q. Did you place the man under arrest ? A. Sgt. Bolds took him out of the car.
* * * * * *
“Q. Your name and official position? A. Sergeant of the Miami Police Department. Robert M. Bolds. Dade County, Florida.
* * * * * *
“Q. Tell the Court the circumstances of the arrest. A. On January 6th at about five forty-five a. m. I pulled up to a traffic light at Northeast First Avenue and Fifth Street on the way to the station. At this time a motorist pulled up and told us he had seen a Ford sedan with the license number, 19S5, 1-4157 had pulled up and stopped along the curb at 1001 Northeast Second Avenue next to the railroad tracks, and the man got out of the automobile. He was wearing a pair of gloves and carrying a crowbar and started walking east along the railroad tracks toward the gas station on Biscayne Boulevard immediately next to the railroad tracks on the Boulevard.
“Q. Did you have the man’s name that gave you the information? A. No; I did not have it; it was just a passing motorist. On that information we swung around, swung east on Fifth Street to Northeast Second Avenue and North on Northeast Second Avenue and observed this car pulled or pulling away from the curb to which the motorist gave us the information, and getting close we noticed the license number was the same and the man in the car was the same, and the defendant swung west on Thirteenth Street, and we swung in behind him and pulled him to the curb, and the defendant got out of the car and came back toward me and I noticed that in his pocket there was a glove sticking out. Then I frisked him outside to see if he had a weapon, which he did not. I looked in the back window of the car which was illuminated by the street lights and in the back seat of the car I noticed there was an adding machine partially covered by old clothes. Since we have had a series of adding machines stolen all over town and one break that afternoon or evening—
“Mr. Gwinn: I object and move to strike.
“By The Court: Q. At the time you looked in the car and saw the adding machine, did you have information that an adding machine or adding machines had been stolen ? A. We had information,—
“Q. You can answer yes or no.
A. Yes, your Honor.”

No reversible error appearing, the judgment is affirmed.

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

THOMAS, HOBSON and O’CON-NELL, JJ., dissent.

O’CONNELL, Justice

(dissenting).

Francis Arthur Pflegl, appellant, was defendant in the Criminal Court of Record for Dade County. The State of Florida is the appellee. The parties will be referred to as they were in the lower court.

The facts are simple. At about 5:45 in the morning of January 6, 1955, Police Officers Bolds and White were cruising in their police car in the City of Miami. A passing motorist stopped them and informed them that he had just seen a Ford automobile with a described license tag stop at a particular address; that he had seen a man get out of the Ford; and that the man was wearing gloves and carrying a crowbar. Upon receiving this information, the Police Officers proceeded -to the spot reported by the motorist. This spot was near a filling station. As they approached, they saw a Ford automobile pull away from the curb and proceed up the street. The Police stopped the Ford, although they observed no unlawful driving or other unlawful acts. When the car had stopped, the Police commanded its driver, the defendant, to get out.' They “frisked” him for weapons. A glove was observed hanging out of defendant’s pocket. Looking through the car window, the Police observed an adding machine on the seat, partially covered by clothing. There was sufficient illumination from the street lights for the Police to observe these facts. Defendant was thereupon arrested “on suspicion, investigation and suspicion of the person pending investigation of B and E and grand larceny”, according to one of the Officers. Defendant was then personally searched and his automobile was searched. The second glove was found along with the crowbar. In addition to the adding machine found in the back seat of the car, the Police discovered, in the locked trunk, two new tires.

Subsequently, the tires found in the trunk of defendant’s automobile were identified by the owner of a filling station, which had been burglarized on December 10th, but which was not reported until the following day as having been stolen from his station. This station- was located approximately one mile from the one involved in the report from the passing motorist. This station owner gave the Police a list of other articles missing from his , station. The Police obtained a search warrant, searched defendant’s apartment and discovered other arti-. cles listed as having been taken from the same station as the tires.

An information was filed against the defendant by the County Solicitor for Dade County alleging breaking and entering with intent to commit grand larceny and grand larceny. Defendant plead “not guilty” and waived jury trial. Defendant moved to suppress the evidence flowing from the search of his automobile, which motion was granted by the trial court. The court heard the testimony of one of the two arresting Police Officers in support of this motion. Next defendant ’ moved to quash the warrant for search of his apartment and to suppress the evidence seized thereunder, upon which motion the court reserved its ruling. Testimony of both arresting Officers, the operator of the premises alleged to have been entered, and another investigating officer was heard. At the conclusion of the State’s case, the court set aside its earlier order suppressing the evidence flowing from search of defendant’s automobile and denied the motion to quash the search warrant for search of the apartment and to suppress the evidence seized thereunder. The defendant was adjudged guilty of breaking and entering with intent to commit grand laceny. Defendant’s motion for new trial was denied and he then entered his notice of appeal.

Questions raised on appeal are whether or not there was a lawful search of and seizure of evidence found in (1) defendant’s automobile and (2) his dwelling. It is conceded by the State that probable cause for the search warrant for the apartment was based in part upon the finding of the tires in the automobile. Consequently, if'it is our finding that the search of the car was unlawful it necessarily follows the search of the apartment was also unlawful. Since defendant’s only objection to the search of the apartment is that it was predicated upon an unlawful halting of defendant’s car, if we find that the halting and search of the car was lawful we must also rule that the search of the apartment was lawful.

From the testimony of the officers who halted defendant’s car and searched it, it is admitted that they observed no unlawful act being committed by defendant in their presence. No report had been made to them that the filling station near which defendant had been observed by the passing motorist had been broken into that night. Both, however, had heard reports that an adding machine had been stolen from another location earlier that night. When they stopped defendant’s car they did not observe the adding máchine, they did not see the machine until after they had “frisked” the defendant. - One officer testified that he knew another filling station had been entered that night and since defendant’s car was observed parked near a station and defendant was observed wearing gloves and carrying a crowbar he was suspicious.

There is no precise - formula for determining whether a search is an unreasonable one prohibited by our Federal Constitution, U.S.Const. Amend. IV. Each case must turn on its own facts. Drayton v. U. S., 5 Cir., 1953, 205 F.2d 35. This Court, however, has ruled that an officer without a warrant of arrest is not authorized to take one into custody on nothing more than a bare suspicion. Kersey v. State, Fla.1952, 58 So.2d 155. We said there that this was particularly applicable when the one apprehended was lawfully traveling a highway in the nighttime. And in the case of Collins v. State, Fla.1953, 65 So.2d 61, we expounded the rule that an officer may arrest one without a warrant if he commits a crime in his presence, but that if no crime is so committed the officer may only arrest him if he is convinced he could show the court he possessed probable cause. If the information possessed by the Officers prior to halting defendant’s car was sufficient to enable them to secure a warrant for the arrest of defendant, then probable cause did exist as a basis for the arrest.

We have held that it is not every search of an automobile without a warrant that is unlawful, but only one that is unreasonable. Longo v. State, 1946, 157 Fla. 668, 26 So.2d 818. If the arrest is lawful, then reasonable search and seizure may be made incident thereto. Mixon v. State, Fla.1951, 54 So.2d 190.

The question then is whether in the instant case the stopping of the defendant was a lawful arrest based on probable cause or was unlawful in that it was based on mere suspicion. It is my opinion that the search of defendant’s automobile and seizure of evidence therein was not reasonable in that the arrest itself was unlawful. The arrest was unlawful in that the arresting Officers had no warrant, the defendant was not observed in the commission of a crime in their presence, and they acted on what appears to me to be bare suspicion. They did not see him at the station with the gloves or crowbar. They could not identify their informant as being a reliable source of information. The' Officers did not possess sufficient -information to constitute probable cause on which to base a warrant for arrest of defendant, had they had opportunity to apply for one before the arrest. The search and seizure having been unreasonable and unlawful, the evidence obtained through such should have been suppressed by the trial court.

It follows necessarily that the evidence secured through a search of the apartment should have been suppressed. A search must be lawful in toto and one which is unlawful ab initio is .not made lawful by what is found in consequence thereof. Kraemer v. State, Fla.1952, 60 So.2d 615. If an arrest is illegal everything that proceeds from it is illegal. Brown v. State, Fla.1952, 62 So.2d 348, 349. The sole probable cause for the issuance of the warrant for search of defendant’s apartment was information flowing from the pfior illegal arrest of defendant and subsequent search of his automobile.' ■ Information so-obtained may not be properly utilized as the sole probable cause for issuance of a search warrant. To hold otherwise would violate defendant’s constitutional protection from unreasonable searches. See 47 Am. Jur., Searches and Seizures, Sec. 74; 79 C.J.S., Searches and Seizures, § 74(3), p. 871; Annotation, 143 A.L.R. 135 (1942); Boynton v. State, Fla.1953, 64 So.2d 536, 552.

Had the evidence been properly suppressed, the trial court could not have found as it did, as the objectionable evidence was the only evidence submitted.

I would reverse the judgment.

THOMAS and HOBSON, JJ., concur.


text:
    Roosevelt RHONE, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, En Banc.
    Feb. 20, 1957.
    Rebearing Denied March 25, 1957.
    B. J. Driver, Clearwater, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   HOBSON, Justice.

Defendant appeals from a conviction of first degree murder without recommendation of mercy.

The assignment of errors is directed to denial of a motion for directed verdict at the close of the State’s case and denial of a motion for new trial. It is not sufficiently specific to comply with Rule 32 of the current Supreme Court Rules, 31 F.S.A., which Rule was in effect when appellant’s notice of appeal was filed, but in view of the nature of the case we have perused the record with care and have considered the points which appellant seeks to raise.

Although appellant does not specifically contend that the evidence is insufficient, we have reviewed it as required by F.S. Sec. 924.32, F.S.A. The deceased, Starreatha Rhone, was the wife of appellant. They had separated, and the wife had gone to Ocala, where her parents resided, while her husband remained in Clearwater. On the day of the killing appellant left Clearwater, proceeded to Ocala, and, upon inquiry, discovered that his wife was employed at a laundry there. He proceeded to the laundry and after a brief conversation with his wife stabbed her some eighteen times with a large knife which he had carried upon his person. His wife attempted to flee or seek protection, but he pursued her, continuing to inflict mortal wounds. This brutal murder was accomplished in the presence of several eyewitnesses, who testified for the State. Just after the crime was committed, defendant stated in the presence of two witnesses that he had done what he came to do.

There is abundant evidence to sustain the verdict, and the jury was carefully instructed. Although appellant contends that it was error to deny a requested instruction that a defendant charged with murder in the first degree carries a presumption of innocence as to every element of such charge, we find that this instruction was sufficiently covered in the charge given. See Goddard v. State, 143 Fla. 28, 196 So. 596.

Appellant further contends that certain remarks of the prosecutor during closing argument were improper, but the record shows that they were permitted to be made without objection by defense counsel. We have reviewed these remarks in the context in which they were made, and we are of the opinion that they are not “of such character that neither rebuke nor retraction may entirely destroy their sinister influence *." Akin v. State, 86 Fla. 564, 98 So. 609, 612, and consequently, absent an objection, we find no reversible error. See Tillman v. State, Fla., 44 So.2d 644.

Finally, appellant contends that it was error for the sheriff, who also acted as bailiff of the court, to be permitted to testify as a witness for the State, although no objection was made to his testimony. In this connection, appellant relies upon Owens v. State, 68 Fla. 154, 67 So. 39, 40. In that case a deputy sheriff, who also acted as bailiff, was in charge of the jury for two nights, had supper with them both nights, and gave material testimony against two defendants as a witness for the State. Two other deputy sheriffs associated with the jury during the trial, and one of them had appeared to be communicating with the Assistant State’s Attorney while the trial was in progress. .The evidence was conflicting upon material points. We reversed the judgment under these circumstances because of the conflict of evidence and because it plainly appeared “that some of the deputies of the sheriff had acted in an irregular and improper manner while in charge of the jury and, it would seem, were overzealous for the prosecution * * * ”

In the instant case, there is no conflict in the evidence upon material points and the testimony of the sheriff was limited to the identification and explanation of some photographs of the locus of the crime and the statement that appellant did not appear to believe that his wife was dead when the sheriff informed him that such was the fact. The sheriff was not a material witness, and his testimony could not have been harmful to the appellant. Indeed, appellant is unable to point out any way in which he has been prejudiced, and merely asserts that it was reversible error to permit the sheriff to give any testimony when he had had the jury in charge “from time to time during the course of the trial”.

A substantially identical situation confronted us in Moseley v. State, Fla., 60 So.2d 167, wherein the Owens case was relied upon by appellant. We affirmed the judgment, observing that it did not appear from the record that appellant was prejudiced in any way by the procedure complained of. Implicit in our opinion in the Moseley case is the principle, which we now state, that the mere fact that an officer has a jury in charge, without more, does not disqualify him from being a witness in the case, and whether or not such procedure will constitute reversible error depends upon the facts and circumstances disclosed by the record. See 53 Am.Jur., Trial, Sec. 858, and cases cited.

It follows that the judgment appealed from must be, and it is hereby, affirmed.

TERRELL, C. J., and ROBERTS, DREW, THORNAL and O’CONNELL, JJ-, concur.

THOMAS, J., not participating.


author: DREW, Chief Justice.

text:
    Jack DICKSON and Benjamin Harrow, as Copartners doing business as Miami Ventilated Awning Shutter Company, Petitioners, v. Paul RIMMEIR and Germaine Rimmeir, as Copartners doing business as Sea View Ventilated Awning Shutters, Respondents.
    Supreme Court of Florida. Special Division A.
    Oct. 5, 1956.
    Rehearing Denied March 7, 1957.
    Robert H. Givens, Jr., Miami, for petitioners.
    Ward & Ward, Miami, for respondents.
   DREW, Chief Justice.

The petition for certiorari seeks to have an amended final decree by the lower court set aside because it fails to conform with the governing principles announced by this court in the appeal of the case—Rimmeir v. Dickson, Fla.1955, 78 So.2d 732.

Confusion has arisen from the use of “trade name” and “trademark” without clearly designating the things to which the terms should apply. This court affirmed paragraph (a) of the original decree granting an injunction against, “ ‘using the word “ventilated” * * * in their trade name or in their trademark * * * ’ ”. Then, in reversing the damage section of the decree, which again used the terms “ ‘trade-name and trademark’ ”, this court made a statement which only referred to “trade name” infringement.

We do not need to distinguish between trademarks and trade names for the purposes of this petition; indeed, current scholarship uses the term “trademark” to include “trade name” in its sense of a nontechnical symbol designating goods from a common source. See Note, Developments In The Law — Trademarks And Unfair Competition, 68 Harv.L.Rev. 814, 824; .Handler and Picket, Trademarks And Trade Names — An Analysis And Synthesis, 30 Colum.L.Rev. 168, 169.

“While a trademark identifies only goods, a trade name may be the name for goods emanating from a particular source * * or it may be the name under which a particular person or association does business.” Restatement, Torts, Sec. 716, Comment A,

The Lanham Act, federal trade-mark law, defines the term “trademark” to include symbols designating goods, but restricts “trade name” to symbols designating firm names. 60 Stat. 427 (1946), 15 U.S.C. §§ 1051-1127 and § 1127. This must have been the basis for the trial judge’s understandable confusion.

In order to correct the misunderstanding which was fostered by our original opinion, we state that the decree below should be framed so that the injunction and the determination of damages take into account both the symbols designating the firm and those designating the products of defendant.

Certiorari is granted, with directions to the chancellor to enter a decree consistent with the original mandate of this court as explained by the foregoing opinion.

THOMAS and THORNAL, JJ., and PATTERSON, Associate Justice, concur.


author: TERRELL, Chief Justice.

text:
    Susie Belle McALLISTER, Appellant, v. Robert Linwood TUCKER and Seaboard Air Line Railroad Company, a corporation, Appellees.
    Supreme Court of Florida, En Banc.
    Feb. 27, 1957.
    Rehearing Denied March 21, 1957.
    Claude Pepper Law Offices, Claude Pepper, Neal Rutledge and Jordan Bittel, Miami, for appellant.
    Smathers, Thompson, Maxwell & Dyer, Douglas D. Batchelor, David W. Dyer and L. S. Bonsteel, Miami, for appellees.
   TERRELL, Chief Justice.

In our opinion filed March 16, 1956 (first consideration), we reviewed the final judgment of the trial court in which he set aside the verdict of the jury and entered judgment for defendants on the ground that the evidence shows “the sole proximate cause of the accident which gave rise to this action was the negligence of the plaintiff’s deceased husband.” After thorough review of the evidence we entered the following order:

“We are convinced that the verdict was contrary to the manifest weight of the evidence. When the trial court so finds, it is his duty to grant a new trial.
“The judgment appealed from is accordingly affirmed in so far as it sets aside the verdict but with directions to grant a new trial.”

Petition for rehearing on the part of appellees filed March 29, 1956, contends that our judgment should have been one of direct affirmance rather than one of affirmance in so far as it sets aside the verdict but with directions to grant a new trial. We thought the point was well taken and on June 20, 1956, amended the judgment of March 16 to read: “The judgment appealed from is accordingly affirmed.”

We are now confronted with a second petition for rehearing in which, among other things, it is contended that our judgment of March 16, 1956, as modified by our judgment of June 20, 1956, is inconsistent and at variance and that a judgment should now be entered in conformance with the verdict of the jury.

We have reviewed the record in the light of the latter petition for rehearing and Mr. Justice HOBSON, Mr. Justice ROBERTS, Mr. Justice DREW and Mr. Justice THORNAL are of the view that the issue was one for a jury and being so the judgment of the trial court should be reversed with directions to approve the verdict and finding of the jury. Mr. Chief Justice TERRELL and Mr. Justice O’CONNELL are of the view that the judgment of the trial court was correct and should be affirmed. It results that the judgment appealed from is reversed on rehearing with instructions to reinstate and affirm the verdict of the jury.

It is so ordered.

HOBSON, ROBERTS, DREW, THOR-NAL and O’CONNELL, JJ„ concur.

THOMAS, J., not participating.


author: ROBERTS, Justice.

text:
    Stanley CZEPIAL, Petitioner, v. KROHNE ROOFING COMPANY, and the Florida Industrial Commission, Respondents.
    Supreme Court of Florida, Special Division A.
    Feb. 6, 1957.
    Rehearing Denied March 1, 1957.
    M. S. Marlin, Miami, for petitioner.
    Blackwell, Walker & Gray, Miami, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   ROBERTS, Justice.

The claimant, a roofer, sought workmen’s compensation for a disability diagnosed as pulmonary tuberculosis, far advanced. The Deputy Commissioner found that, although tuberculosis is not a disease peculiar to the roofing trade, “claimant’s continued work and failure to have care and rest, together with his exposure to the inhalation of tar fumes, ordinary •dust, marble chip dust, and pea rock dust, -a risk incident to claimant’s employment to which the ordinary public is not generally exposed, caused the manifestation -of claimant’s clinical tuberculosis and resultant disability.” His award of compensation was appealed to the Full Commission, which found that there was competent substantial evidence to support the findings of fact of the Deputy Commissioner but that the award was not justified as a matter of law. The Commission reversed the order of the Deputy Commissioner on the ground that the acceleration or aggravation of a pre-existing disease is compensable only when it occurs as the result of an “accident”, as defined in the statute, Sec. 440.02(19), Fla.Stat. 1955, F.S.A., and that in the instant case the acceleration or aggravation of claimant’s tubercular condition was not “an -unexpected or unusual event or result, happening suddenly.” The claimant has appealed.

The issue here may be stated as follows : Where the constant inhalation of dusts and fumes directly contributes to the acceleration or aggravation of a preexisting disease, has the claimant suffered an injury “by accident” for which he must be compensated by the employer in whose employment the injurious exposure occurred? We think the question must be answered in the affirmative.

In Alexander Orr, Jr., Inc., v. Florida Industrial Commission, 1937, 129 Fla. 369, 176 So. 172, 173, in holding that a sunstroke was compensable as an injury by accident, this court adopted the rule stated in Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, 569, as follows:

“ * * the harmful condition does arise out of the employment, if, in the performance of the duties for which he was engaged, in the manner required or contemplated by the employer, it is necessary for the employee to -expose himself to a danger, materially in excess of that which people commonly in that locality are exposed, when not situated as he is when thus performing his service, and that such excessive exposure may be found to have been the direct cause of the injury, though operating upon other conditions of common exposure.’ ”

The rule above stated was applied in Cook v. Henry C. Beck Co., Fla.1950, 48 So.2d 743, to hold that pneumonia was compensable where a night watchman was required to be out in wet and cold weather for a long period of time and the medical evidence showed that the exposure endured by the claimant as a night watchman was a contributing factor to the pneumonia.

In Scobey v. Southern Lumber Co., 1951, 218 Ark. 671, 238 S.W.2d 640, 243 S.W.2d 754, where the constant inhalation of emery dust and sawdust caused an irritation in the claimant’s decedent’s lung which accidentally aggravated a cancerous condition, in was held that claimant’s decedent’s death was the result of an “injury by accident” within the meaning of the Arkansas Workmen’s Compensation Law. And in Vogt v. Ford Motor Co., Mo.App., 138 S.W.2d 684, 687, it was held that the activation of a dormant allergy by the inhalation of dust, chemicals, vapors and fumes of paint, resulting in bronchial asthma, was compen-sable, as against the contention that the bronchial asthma was not the result of an accident, defined by statute as “ ‘an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.’ ” See also Traders & General Ins. Co. v. Wright, Tex.Civ.App.1940, 144 S.W.2d 626, where compensation was allowed for tuberculosis following the inhalation of gas while cleaning an oil tank; Kulig’s Case, 1954, 331 Mass. 524, 120 N.E.2d 757, holding compensable tuberculosis accelerated by paint spray; Hardin’s Bakeries, Inc., v. Ranager, 1953, 217 Miss. 463, 64 So.2d 705, holding that a baker’s disability, caused by an allergy resulting from his contact with a mitten he was required to use in handling hot pans of bread as they came from the oven, resulted from “accidental injury”, and cases therein cited; Schneider, Workmen’s Compensation, Vol. 4, Sec. 1328; Larson, Workmen’s Compensation, Vol. 1, Sec. 12.20.

Under the facts, as found by both the Deputy Commissioner and the Full Commission, claimant’s pre-existing tubercular condition was accelerated or aggravated by his continued work and failure to have care and rest, together with his inhalation of dust and fumes to which the public ge-ris-erally is not ordinarily ex-posed. There was thus found to be a direct causal connection between claimant’s injury and the exposure to a danger not ordinarily risked by the public (the inhalation of dust and fumes) even though this was not found to be the sole cause of his disability.

We re-affirm the rule of Alexander Orr, Jr., Inc., v. Florida Industrial Commission, supra, 176 So. 172, that “excessive exposure may be found to have been the direct cause of the injury, though operating upon other conditions of common exposure”, and we agree with the decisions from other jurisdictions, cited above, holding in effect that the fundamentally accidental nature of the injury is not altered by the fact that, instead of a single occurrence, it is the cumulative effect of the inhalation of dust and fumes to which a claimant is peculiarly susceptible that accelerates a claimant’s pre-existing disability.

The claimant in the instant case is entitled to an award of compensation for that' proportion of the acceleration or aggravation of his tubercular condition that is reasonably attributable to his inhalation of dust and fumes in the course of his employment. Accordingly, the order of the Full Commission is quashed with directions to remand the cause to the Deputy Commissioner for the entry of such an award upon an appropriate finding of fact.

It is so ordered.

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


author: THORNAL, Justice.

text:
    Fred HARTNETT, as Mayor and Commissioner of the City of Coral Gables, Florida, W. Keith Phillips, Lucille Neher, Robert L. Searle and John M. Montgomery, Members of the City Commission in and for the City of Coral Gables, Florida, Appellants, v. W. P. AUSTIN and Wilmeth F. Austin, his wife, Appellees.
    Supreme Court of Florida, en Banc.
    Dec. 5, 1956.

      Edward L. Semple, Miami, for appellants.
    Gustafson, Persandi & Vernis, Coral Gables, and Anderson & Nadeau, Miami, for appellees.
    M. L. Mershon and W. O. Mehrtens and Evans, Mershon, Sawyer, Johnston & Simmons, Miami, amici curiae.
   THORNAL, Justice.

Appellants, Hartnett and others, who were defendants below, seek reversal of a final decree holding a zoning ordinance of the City of Coral Gables to be invalid.

Several points are assigned for reversal. The determining question, however, is the validity of a zoning ordinance which is made contingent upon the subsequent execution of a contract between the city and private parties.

Burdines, Inc., alleging itself to be the holder of an option to purchase the property in question, requested the City Commission to change the zoning classification of the property from single-family residential use to commercial use. The change was necessary in order to enable Burdines to construct a large shopping center with an adjoining parking lot. The City Commission, after hearing, adopted Ordinance No. 897 undertaking to amend its original zoning ordinance which was numbered 271.

Ordinance 897, which is here under attack, provided that the requested change should be made. However, the ordinance expressly provided that “all of the re-zoning is subject to and dependent upon the full and complete observance of the limitations, restrictions and other requirements imposed as hereinafter set forth”. Following this provision a number of contingencies were prescribed as conditions to the effectiveness of the amendatory ordinance. In summary these conditions were: (1) a “Bay Point type wall” shall be placed around the perimeter of the property not less than 40 feet inside the property line abutting certain streets; (2) the 40-foot strip shall at all times be kept and maintained in a condition prescribed by the City Commission at the expense of the property owner; (3) suitable contracts shall be entered into between the city and the property owner covering the above requirements and also providing for control of lights on the premises in order to bring about “as little glare and disturbance” as possible to the people in the neighborhood (this expense was to be borne by the property owner) ; (4) the property owner should furnish and pay for adequate police protection within the rezoned area; (5) to submit to the City Commission for approvel plans and specifications of any proposed building; and (6) the property owner shall not open access to certain abutting streets.

The appellees, Austin, who owned and occupied a home across the street from the area proposed to be re-zoned, filed a complaint seeking an injunction against the enforcement of the ordinance. The Chancellor agreed that the ordinance was invalid and permanently enjoined its enforcement. Reversal of this decree is now sought.

Appellants contend that the ordinance was a valid exercise of the zoning powers of the city; that in the absence of a clear showing as to invalidity, the ordinance should be upheld; that at most, need for the change in the zoning is “fairly debatable” and that therefore the decision of the City Commission should not be disturbed.

Appellees contend that the ordinance is clearly invalid; that they purchased their property in reliance upon the then-existing zoning ordinance; that they have a right to a continuance of the then-existing regulations in the absence of a showing of a change in the area that justifies the amendment ; that there has been no such showing, and that further, the ordinance by its very terms is made contingent upon the subsequent execution of a contract with private parties and this results in a degree of indefiniteness and uncertainty that destroys, the ordinance as a valid municipal enactment.

By very able briefs, the parties have raised for our consideration numerous questions. The point which we consider fatal to the ordinance disposes of the necessity to discuss all of the incidental questions.

It is a rule long recognized by the-precedents that a municipal ordinance-should be clear, definite and certain in its terms. An ordinance which is so vague-that its precise meaning cannot be ascertained is invalid, even though it may otherwise be constitutional. The reason for the rule is the necessity for notice to those affected by the operation and effect of the ordinance. The provisions of a municipal ordinance which conditions its effectiveness, upon the necessity for the subsequent execution of a contract with private parties such as was done in the case at bar cannot, be held to provide the degree of clarity and. certainty that is required of municipal legislation. See McQuillan on Municipal Corporations, 3d Ed., Vol. 5, Sec. 15.24.

The above announced rule is particularly applicable to the exercise of the zoning power which is an aspect of the police: power.

The above announced rule is particularly applicable to the exercise of the zoning power which is an aspect of the police power. While the authority to exercise this power, when delegated by the State, is generally recognized, nevertheless, the restriction on property rights must be declared as a rule of law in the ordinance and not left to the uncertainty of proof by extrinsic evidence whether parol or written. Johnson v. City of Huntsville, 1947, 249 Ala. 36, 29 So.2d 342.

A municipality has no authority to enter into a private contract with a property owner for the amendment of a zoning ordinance subject to various covenants and restrictions in a collateral deed or agreement to be executed between the city and the property owner. Such collateral agreements have been held void in all of the cases to which we have been referred. Snow v. Van Dam, 291 Mass. 477, 197 N.E. 224; V. F. Zahodiakin Eng. Corp. v. Zoning Board of Adjust., 8 N.J. 386, 86 A.2d 127; Houston Petroleum Co. v. Automotive Prod. C. Ass’n, 9 N.J. 122, 87 A.2d 319; Rathkopf on The Law of Zoning and Planning, 3d Ed., Vol. 2, p. 392. Any contrary rule would condone a violation of the long established principle that a municipality cannot contract away the exercise of its police powers. When a zoning ordinance is amended by changing the classification of particular property, such amendment must be justified by a change in the use value of the property involved.

We are not here receding in any fashion from our established rule that if the need for a change in a zoning ordinance is “fairly debatable” the decision of the governing authority^ will be given the benefit of the doubt. Here the ordinance expressly recognized that the change was justifiable only: (1) if the Bay Point Wall was built; (2) if there was a 40-foot setback; (3) if the set-back area was landscaped and maintained; (4) if surrounding property owners were protected against glare and disturbance; and (5) if the property owner paid for police protection. All of these “ifs” were to be included in a proposed collateral private contract to be executed in the future. If the City Commission, after appropriate hearing, had determined that the highest and best use value of the land had changed from residential to commercial, then the “fairly debatable” rule might have a sphere of applicability. This was not done.

In exercising its zoning powers the municipality must deal with well-defined classes of uses. If each parcel of property were zoned on the basis of variables that could enter into private contracts then the whole scheme and objective of community planning and zoning would collapse. The residential owner would never know when he was protected against commercial encroachment. The commercial establishments on “Main Street” would never know when they had protection against inroads by smoke and noise producing industries. This is so because all genuine standards would have been eliminated from the zoning ordinance. The zoning classifications of each parcel would then be bottomed on individual agreements and private arrangements that would totally destroy uniformity. Both the benefits of and reasons for a well-ordered comprehensive zoning scheme would be eliminated.

The adoption of an ordinance is the exercise of municipal legislative power. In the exercise of this governmental function a city cannot legislate by contract. If it could, then each citizen would be governed by an individual rule based upon the best deal that he could make with the governing body. Such is certainly not consonant with our notion of government by rule of law that affects alike all similarly conditioned.

This opinion is not to be construed as being adversely critical of the policy adopted by appellants in this instance. Conceivably, if effectuated, the plan might redound to the economic benefit of the community. We have dealt here solely with a question of municipal power, not policy. When the nub of the problem is isolated and subjected to the criterion of municipal power to act in the manner here revealed, we are compelled to reach the conclusion which we here announce. We find no authorities to the contrary.

We encounter no difficulty in concluding that the appellees were entitled to bring the suit. They occupied their homes immediately across the street from the proposed parking area. They relied on the existing zoning conditions when they bought their homes. They had a right to a continuation of those conditions in the absence of a showing that the change requisite to an amendment had taken place. They allege that the contemplated change would damage them and that it was contrary to the general welfare and totally unjustified by existing conditions. This gave them a status as parties entitled to come into court to seek relief. True their rights were subject to the power of the city to amend the ordinance on the basis of a proper showing. Nonetheless, they have a right to insist that the showing be made.

We point out in passing that the applicant Burdines was not appealing to a Board of Adjustment for a variance on the basis of any hardship. They were seeking an outright change in the zoning ordinance by amendment. In this regard they were mere optionees of the property. Not being owners thereof, they would hardly have any standing before a Board of Adjustment on the basis of an alleged hardship. What we have here held might not be applicable to a proper application for a variance by an owner based on hardship. This is a point which we are not called upon to decide. For limitations on the authority to “amend” under the guise of a “variance” see Yolkey on Zoning Law and Practice, 2d Ed., Sec. 140, and many cases there cited.

As pointed out above, our solution to the vital question discussed disposes of the controversy. We deem it unnecessary to-prolong our discussion by delving into the other points raised.

The Chancellor ruled correctly in holding the ordinance invalid and his decree is—

Affirmed.

DREW, C. J., TERRELL and O’CON-NELL, JJ., and WALKER, Associate Justice, concur.

ROBERTS, J., dissents.


text:
    Edise M. THOMPSON, Appellant, v. Edmund B. THOMPSON, Appellee.
    Supreme Court of Florida, Special Division A.
    Feb. 27, 1957.

      Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellant.
    Joseph C. Black, Jacksonville, for appel-lee.
   ROBERTS, Justice.

This is an appeal from an order entered in a proceeding brought under the Uniform Reciprocal Enforcement of Support Law, Ch. 29901, Acts of 1955, appearing as Ch. 88, Fla.Stat.1955, F.S.A. (the “1955 Florida Act” hereafter).

The facts are not controverted and are as follows: the appellant and the appellee were divorced in 1953 by a decree ef the Circuit Court of Volusia County, Florida, the decree providing for the payment to the appellant wife of $20 per week for alimony and support of the minor child of the parties pursuant to an agreement of the parties. The appellant is a resident of the State of Connecticut and the appellee resides in Jacksonville, Duval County, Florida. Connecticut has a Uniform Reciprocal Enforcement of Support Law, Ch. 415b, Conn.Gen.Stat, 1953 Supp. (referred to hereafter as “the Connecticut Law”) substantially similar to the 1955 Florida Act, supra.

In 1954 the appellant sought to utilize the provisions of the Connecticut Law and the Florida Uniform Support of Dependents Law, Ch. 27996, Acts of 1953 (then in effect but since repealed by the 1955 Florida Act, supra), to enforce the appel-lee’s duty of support decreed by the 1953 Volusia County divorce decree. Her petition was referred by the Connecticut court to the Circuit Court of Duval County (the place of appellee’s residence) and was by that court dismissed on the ground that the Volusia County Circuit Court divorce decree “supersedes the decree entered by the Common Pleas Court, State of Connecticut.” No appeal was taken from the order of dismissal entered in the 1954 proceedings.

In 1955 the instant proceedings were initiated in the Connecticut court by appellant under the provisions of the Connecticut Law and the 1955 Florida Act, seeking the same relief as in her 1954 proceedings. Her petition was again referred to the Circuit Court of Duval County. The judge of the Duval County court sustained the appellee’s plea of res judicata by virtue of the 1954 proceedings and dismissed her petition. In his order of dismissal, the trial judge opined that the Connecticut court should have referred appellant’s petition to the Volusia County Circuit Court since that court, having entered the divorce decree upon which the duty of support was based, was “in a better position to handle this matter in Chancery, under contempt proceedings, than this Court. * * * ” No plea to the jurisdiction of the Duval County court was made, and we are unable to determine whether this statement was, in effect, a ruling that the Duval County court lacked jurisdiction of the matter. In the brief filed in this court on behalf of the appellant, counsel has so interpreted it and has questioned its propriety. No brief has been filed on behalf of appellee. Since the question may arise in future proceedings on the appellant’s petition, the point will be discussed hereafter.

As to the issue of res judicata, it is well settled that res judicata is not a defense in a subsequent action where the law under which the first judgment was obtained is different from that applicable to the second action. Wagner v. Baron, Fla.1953, 64 So.2d 267, 37 A.L.R.2d 831, and cases cited.

The Florida Uniform Support of Dependents Act under which the appellant’s 1954 proceedings were filed (“the ■ 1953 Florida Act” hereafter) is considerablydifferent from the 1955 Uniform Reciprocal Enforcement of Support Law applicable to the instant proceedings. The 1953-Florida Act was of the type first brought into existence in New York in 1949; tb,e-1955 Florida Act is based on the Uniform Reciprocal Enforcement of Support Act approved by the National Conference of Commissioners on Uniform State Laws in. 1950, as amended in 1952. The purpose of the 1953 Florida Act was to secure-support for “dependent wives and children”' only, whereas the 1955 Florida Act applies to “any person to whom a duty of support is owed”. The 1955 Florida Act specifically provides that “duty of support” includes a. duty imposed or imposable “by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial separation,, separate maintenance or otherwise.” Sec. 88.031(6), Fla.Stat.1955, F.S.A. The 1953 Florida Act did not contain such a provision. The appellant has a clear right to proceed under the 1955 Florida Act to enforce the appellee’s duty of support decreed by the Volusia County Circuit Court. It would add nothing to the jurisprudence of this state to decide whether she had such a right under the 1953 Florida Act since, as noted, it was repealed by the 1955 Florida Act. Moreover, as we read appellant’s petition, she is applying only for alimony and child support money accruing subsequent to the effective date of the 1955 Florida Act.

In all the circumstances here, we have concluded that the doctrine of res judicata should not be applied to defeat the appellant’s right to proceed under the 1955 Florida Act to enforce the appellee’s duty of support during the period following the effective date of the 1955 Florida Act.

The only remaining issue here presented has to do with the proper forum in which to enforce that obligation. Should it be enforced in the court of this state having jurisdiction of the obligor? Or should it be enforced in the court of this state in which. the decree imposing the duty of support was entered though neither party resides within the jurisdiction of the latter court? Some discussion of the purpose of the Uniform Reciprocal Enforcement of Support Law and its provisions is necessary here.

The Uniform Reciprocal Enforcement of Support Law was intended to provide a simplified two-state procedure by which the obligor’s duty to support an ob-ligee residing in another state may be enforced expeditiously and with a minimum of expense to the obligee (or to the State, if the obligee is indigent). It contemplates that the court of the initiating state will refer the petition to the court of the responding state having jurisdiction of the obligor or his property. It is intended to provide remedies to the obligee “in addition to and not in substitution for any other remedies”, Sec. 88.041, Fla.Stat.195S, F.S.A. It takes cognizance of the fact that the duty of support may arise out of a divorce or separate maintenance decree entered by another court and provides that “Any order of support issued by a court of this state when acting as a responding state shall not supersede any previous order of support issued in a divorce or separate maintenance action, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.” Sec. 88.281, Fla.Stat.1955, F.S.A.

Since 'by its terms the Act is designed to provide a remedy entirely separate from and independent of any remedies existing under other applicable provisions of law, we have no difficulty in holding that the Circuit Court of Duval County, the place of the appellee-obligor’s residence, had jurisdiction of the proceedings. Clearly, if the duty of support sought to be enforced in that court was imposed by a divorce or separate maintenance decree entered by the court of another state, the Duval County court would have jurisdiction. And there is no difference, in principle, in enforcing the duty of support decreed by a sister state and in enforcing the duty when decreed by a court of this state, especially since it appears to be the duty of support imposed by a divorce or separate maintenance decree (as distinguished from the amount of the support so decreed) that is enforced by the responding state under the Act in question. Cf. Gohdes v. Gohdes, 1955, 134 Cal.App. 2d 819, 286 P.2d 539, where the California court ordered the obligor to pay less than the amount of support awarded by the decree of a court of another state; and Whittlesey v. Bellah, 1955, 130 Cal.App.2d 182, 278 P.2d 511, certiorari denied 350 U.S. 821, 76 S.Ct. 47, 100 L.Ed. 734, where it was held that the California court had jurisdiction to entertain a petition under the Act seeking a greater amount of support than that awarded in a divorce decree entered in another state.

The question of whether the lodging of appellant’s petition in the Duval County Circuit Court (or, for that matter, in the Volusia County Circuit Court, if the petition had been referred to it by the Connecticut court) conferred jurisdiction of the person of the appellant sufficient to authorize. the court to entertain an application by the appellee under Sec. 65.15, Fla.Stat. 1955, F.S.A., for the modification of the support provisions of the Volusia County divorce decree was not presented and will not be decided.

For the reasons stated, the decree appealed from should be and it is hereby reversed and the cause remanded for further proceedings.

Reversed and remanded.

TERRELL, C. J., DREW and THOR-NAL, JJ., concur.