author: O’CONNELL, Justice.

text:
    Abraham SHAFFRAN, Appellant, v. J. E. HOLNESS, Jr., a/k/a Joseph E. Holness, Jr., and - Holness, his wife, if married, and Mildred S. Holness, a single woman, Appellees.
    Supreme Court of Florida, Special Division B.
    March 6, 1957.
    Ward & Ward, Simon & Hays, Miami, John E. Born and Warwick, Paul & Warwick, West Palm Beach, for appellant.
    Farish & Farish, West Palm Beach, and Wm. A. McRae, Jr., Bartow, for appellees.
    B. F. Paty, West Palm Beach, as amicus curiae.
   O’CONNELL, Justice.

Abraham Shaffran, the appellant, was the plaintiff in an action to foreclose a second mortgage on real property. The appellees, Joseph E. Holness, Jr. and Mildred S. Holness, were the defendants.

To the plaintiff’s bill of complaint, the defendants filed an answer in which they denied making the mortgage and note and also alleged that:

“10. * * * the alleged note and mortgage * * * does not comply with chapter 687 of the Florida Statutes [F.S.A.] and is in violation of said chapter 687, Florida Statutes [F. S.A.], and as such is a void and usurious loan contract.
“11. That there has been certain amounts of monies demanded, charged and accepted and/or exacted from the defendants by the plaintiff or by his officer, agent or other representative of the plaintiff that are in violation and do not conform to chapter 687, Florida Statutes [F.S.A.].”

In due course the plaintiff filed a motion for summary final decree without supporting affidavits. The defendants then filed their motion for summary final decree, to which they attached affidavits executed by themselves and an affidavit executed by Joseph E. Holness, Sr., father of Joseph E. Holness Jr.

Depositions were taken of the defendants by the plaintiff and the defendants took the deposition of plaintiff and of A. Neil Sawyer, one of the partners of United Mortgage Company (not inc.). As will appear below, United Mortgage Company, mortgage brokers, arranged the making of the mortgage in question between the parties to this action. The mortgage company will be referred to herein as United.

Thereafter the parties entered into a stipulation providing:

“ * * * That depositions have been taken by both the plaintiff and defendants and that there have been affidavits filed by the defendants in response and in support of the respective motions for summary final decree. That neither party desires and does hereby agree that they will not submit any further affidavits or evidence and that the respective motions for summary final decree will be considered by the Court after argument on the record, pleadings, affidavits and depositions as are now on file in the cause. * *

The chancellor entered a summary final decree finding the note and mortgage to be usurious in violation of F.S. Sections 687.03 and 687.07, F.S.A., declaring the mortgage and note to be null and void, and assessed penalties against the plaintiff. The plaintiff petitioned for rehearing which was denied. The chancellor then entered a final decree, affirming the summary final decree, except for correction as to a finding relating to the date of execution of the note and mortgage.

From the pleadings, the affidavits, the depositions and the exhibits attached to the depositions, which were before the chancellor when he entered his summary final decree and which are now before us, the following facts appear.

Defendant Joseph E. Holness, Jr. was in need of funds. He made this known to an “associate friend”, Harry Silett, who put him in touch with Murray Sawyer, a representative of United Mortgage Company and brother of A. Neil Sawyer, abovemen-tioned. Holness, Jr. advised Murray Sawyer that he wanted to borrow $20,000‘ through a second mortgage on his home. United Mortgage Company knew plaintiff as one who made mortgage loans. It appears that they had arranged one or more loans with plaintiff prior to the one in controversy here. The mortgage company contacted plaintiff and with Murray Sawyer and Holness, Jr. plaintiff inspected the property proposed to be mortgaged. It does-not appear that it was made known to Holness, Jr. that plaintiff was the prospective lender. Holness, Jr. stated he thought plaintiff was an appraiser for United. After looking at the property plaintiff advised United that he would only lend $15,000. Holness, Jr. accepted this figure.

The defendants executed a document wherein they engaged the services of United to secure for them a second mortgage loan in the sum of $15,000, payable at the rate of $500 per month, said monthly payments to include interest at 10% per an-num. This document bears date December 5, 1954 and provides that defendants were to pay United the sum of $3,000, said sum to coyer their services and all costs of the loan.

The defendants also executed a note and mortgage in accordance with the terms above set forth, both bearing date of December 5, 1954. A closing statement prepared by United dated December 13, 1954 was also signed by defendants.

Although defendants admit that the signatures on the above documents are theirs, in both their depositions and affidavits they contend that the documents were not completed when they signed them and that they signed them not on December 5, 1954 but on December 13, 1954. They insist that they visited the office of United together on only one occasion, December 13, 1954 the day the loan was closed, and that they signed no documents on any other occasion.

The loan was closed on December 13, 1954 at which time United gave defendants the sum of $11,881.43, which according to the closing statement was the sum of $15,-000, less the sum of $3,000 mentioned in the agreement abovementioned and less the sum of $118.57 for additional hazard insurance on the mortgaged property.

Defendants say that they protested the deductions but were told by United that if they wanted the money they would have to take it with the above deductions being made. Defendants accepted the money.

Defendants say that they did not know plaintiff was the lender until they received a letter dated December 21, 1954 from United’s attorney advising them to make their payments to plaintiff. They say they thought they were borrowing from United.

Defendants made a total of six (6) monthly payments in accordance with the mortgage. Some payments were delinquent when made. On one of these occasions, the attorney for United wrote defendants demanding payment on behalf of plaintiff.

It appears that plaintiff, through his attorney who represented him in the making of the loan, gave to United the sum of $15,-000 by cashier’s check dated December 14, 1954 and it follows that United had advanced the sums necessary to close the loan the previous day, December 13th.

After argument on the motions for summary final decree the chancellor entered such a decree, in which he stated that he found three questions to be answered: (1) did the note, mortgage and charges in connection therewith constitute a violation of F.S. Sec. 687.03, F.S.A. by charging more than 10% interest, or (2) did they constitute a violation of F.S. Sec. 687,07, F.SA. by charging more than 25% interest and (3) was United Mortgage Company the agent of plaintiff?

The cháncellor in answering question (1) found that plaintiff charged interest from December 5, 1954, the date on the note and mortgage, but that defendants did not receive the proceeds of the loan until the loan was closed eight days later, i. e. on December 13, 1954; that interest for these eight days amounted to $32.24, that this constituted a charge in excess of 10% per an-num by the sum of $32.24 and therefore the transaction was usurious and in violation of F.S. Sec. 687.03, F.S.A.

It appears to us that the chancellor could properly dispose of this issue on motion for summary final decree because the facts necessary to determination of this question are not disputed and were in the record before the chancellor.

However, we must reverse the chancellor on this first question because we have previously decided the law to be contrary to his decision.

We find no basis in the record before the chancellor, and now before us, to show that the note was predated or the closing delayed with intent to charge interest to the defendants on money which they had not yet received so as to circumvent the usury statute. It is a necessary, wise, and common practice on the part of lenders, both institutional and individual, before proceeds of the loan are disbursed to require that the note and mortgage be executed and recorded and that some evidence, such as an attorney’s opinion of title, be given to show that the mortgage enjoys the intended priority as a lien on the property involved. In such transactions an adjustment is usually made in the payment schedule so that interest is charged only from the date the funds are disbursed to the borrower.

There is nothing in this record to indicate that this transaction was handled in any way that would justify the imputation of usurious intent. It is our view that the failure to abate interest until the actual closing was an error in closing which should be adjusted as such an error rather than to be construed as constituting usury. Mindlin v. Davis, Fla.1954, 74 So.2d 789, and cases therein cited.

The chancellor answered his questions (2) and (3) above, by finding that United was the agent of plaintiff and that the sum of $3,000.00, with exception of certain items of costs which he held proper charges against defendants, should be added to the interest charged by plaintiff to determine the amount of excessive charges. He found that these charges when added to the interest charged exceeded 25% per annum in violation of F.S. Sec. 687.07, F.S.A. He assessed penalties according to F.S. Sections 687.03 and 687.07, F.S.A.

It is to be noted that defendants do not contend and the chancellor did not find that plaintiff himself exacted any commission or bonus, or that he withheld any part of the monies represented by the mortgage and note.

While the chancellor could from the undisputed evidence before him determine on motion for summary final decree the amount of the charges made by United, we think he erred in determining the factual question of agency in such proceedings

It is obvious that there was a genuine issue of material fact involved, i. e. the question of whether United was the agent of plaintiff or of defendants. In order to determine that there was such an issue we need only look to the loan application and brokerage contract, by the terms of which defendants engaged United to act for them in procuring a second mortgage loan and agreed to pay United the sum of $3,000 for such services and the costs incident to the loan. While defendants contend that this document was not completed when they executed it, they admit they signed it. The document was a printed form. The printed portion thereof is clear and unambiguous in its meaning. It made United the agent of defendants. Nowhere in the record before us do defendants charge or by sufficient facts show that United was the agent of plaintiff.

And if it be contended that the matter of agency is not disputed by plaintiff, our opinion is he did not dispute it because it was not sufficiently raised by defendants. The answer of defendants raises the question only in the general terms set forth i» the second paragraph hereof. The affidavits of the defendants are silent, on the question. Their depositions do not charge agency between plaintiff and United. On the. other hand, A. Neil Sawyer in his deposition specifically stated United was the agent of defendants. The loan application on its face makes United the agent of defendants. Plaintiff in no way admitted that United was his agent. Whether disputed or not there was in this cause a question of material fact not settled by the record but necessary to be determined in disposition of this cause.

Summary proceedings under 30 F.S. A. Fla. Rules of Civil Procedure, rule 1.36 may be used only to determine whether or not there is a genuine issue of material fact to be determined. Factual issues may not be tried or resolved in such proceedings. Johnson v. Studstill, Fla.1954, 71 So.2d 251. And a judgment should not be rendered in such proceedings unless the facts are so crystallized that nothing remains but questions of law. Yost v. Miami Transit Co., Fla.1953, 66 So.2d 214.

Nor is it material that both plaintiff and defendants had each moved for summary final decree on the basis that there was no genuine issue of material fact, for the court is not required to so rule, nor does it follow that there is actually no such issue, merely because both parties so contend. Begnaud v. White, 6 Cir., 1948, 170 F.2d 323; Walling v. Richmond Screw Anchor Co., 2 Cir., 1946, 154 F.2d 780, certiorari denied 1946, 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640.

Further the moving parties have the burden of showing the absence of a genuine issue of material fact and all doubts as to existence of such fact must be resolved against them. Williams v. City of Lake City, Fla.1953, 62 So.2d 732. If movant’s showing is inadequate or an issue of fact otherwise appears the motion must be denied. Brensinger v. Margaret Ann Super Markets, Inc., 5 Cir., 1951, 192 F.2d 458; Dulansky v. Iowa-Illinois Gas & Elect. Co., D.C.S.D.Iowa 1950, 10 F.R.D. 566.

It is clear to us that the defendants did not show the absence of a genuine issue of fact on the material question of agency involved herein and it was error for the court to enter the summary final decree and the subsequent final decree.

The defendants contend that the fact that the mortgage company advanced the funds necessary to close the loan on December 13, 1954, one or two days prior to the receipt of plaintiff’s check for $15,000.00, is sufficient to make the mortgage company the agent of the plaintiff. They rely on the case of Sanford v. Kane, 1890, 133 Ill. 199, 24 N.E. 414, 8 L.R.A. 724. But in that case the court found the broker, himself, to be the lender which is not the situation here. We do not find that case to be authority upon which we could act in the case now before us.

It appears from the final decree that the chancellor considered the stipulation between the parties, as above recited, a waiver of trial.

We do not construe the stipulation to be of this effect. Nevertheless, assuming for the purposes of argument that the stipulation amounted to a waiver of trial we would still have to reverse the decree, for there are not sufficient facts from which the chancellor could properly conclude that United was the agent of plaintiff.

We have decided by this opinion that the charging of interest by plaintiff for the eight days prior to closing should be considered as an error in closing, to be adjusted as such, and that it does not on the record before us constitute usury.

We have further decided that the defendants did not show the absence of a genuine issue of material fact in this cause so as to authorize the chancellor to have entered a final decree herein in summary proceedings.

We do not decide that United is the agent of either plaintiff or defendants or that the note and mortgage is or is not a usurious contract. These matters must be decided after a trial of this cause in accordance with law.

Nor do we decide the sufficiency of the allegations of the defendants’ answer relating to the affirmative defense of usury since we do not feel such question is properly before us.

There is little doubt that the defendants in this cause paid dearly for the services of the mortgage broker. This case points up an existing and perhaps growing cancer which gnaws at and sometimes devours the necessitous borrower. The cancer is the mortgage broker who without regard to the ability of the borrower to extricate himself from the mortgage debt, hastens to assist him into an economic sink hole for what in many cases is an exorbitant fee or commission.

But we can not correct this ill. It is for the legislature in its wisdom to give thought and action, if desired, to the problem. And it appears to us from the number and variety of the cases which come before us involving mortgages and usury, in many of which the borrower is assisted into his difficulty by a mortgage broker, that it is not enough that our statutes protect the borrower from excessive interest rates. It seems necessary if the intent and purpose of the usury statutes is to be accomplished that the borrower also be protected from excessive commissions and fees charged by the mortgage broker.

The summary final decree and the final decree herein are reversed and the cause remanded for further proceedings not inconsistent herewith.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida ex rel. George A. BRAUTIGAM, State Attorney, Eleventh Judicial Circuit of Florida, Appellant, v. INTERIM REPORT OF GRAND JURY Recommending Resignation of Judges and Disbarment of Attorneys Implicated in the Dowling Estate Curators Case, Dated April 26, A. D. 1956 of the Dade County Grand Jury, Fall Term, 1955, Appellee.
    Supreme Court of Florida, En Banc.
    Feb. 27, 1957.

      George A. Brautigam, Paul A. Louis, Max B. Kogen, Thomas N. Balikes, William A. Meadows, Jr., and Donald G. Mac-Kenzie, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

We here review the action of an assigned circuit judge in refusing to suppress portions of an interim report of the Dade County grand jury filed April 30, 1956, just eight days prior to the filing of its final report. The motion to suppress was made by the State Attorney, who was not named in the interim report nor consulted as to the propriety of its filing.

The portion of the interim report sought to be suppressed dealt with the actions and conduct of a circuit judge and three attorneys appointed by him in the handling of the estate of an incompetent — two as curators and one as guardian ad litem. It might be noted that, although the allowance of fees and approval of the curators’ administration by the trial judge involved the exercise of his judicial discretion, no interested party has complained, on appeal, that he abused his discretion. It is also noteworthy that one of the curators had, at the time of the investigation, been appointed a circuit judge and has since, in November 1956, been elected by the people to perform the duties of the office after a full public disclosure of the charges made in the report.

In addition to a factual account of the administration of the incompetent’s estate, the report contained the jurors’ own personal interpretation of the facts and their views as to the underlying motives of the principals in pursuing the course of conduct detailed in the report. Almost all of their remarks in this respect were derogatory and defamatory. The over-all tone of the report is exemplified' by the following excerpt from their “summary”:

“As the story unfolded it showed what happens to helpless old people who seek the protection of Judge -’s Court ‘against designing persons’ — wanton disregard of the law, and the stripping of the estate of a helpless old man of vast sums of money.”

The jurors concluded that “[i]n view of the disregard of the law, in view of the squandering of assets of an estate and the allowance of exorbitant fees, in view of the connivance of the Court and its appointees, and in view of conduct unbecoming Judges and members of the Dade County Bar,” the circuit judges in question were “unfit to serve and should resign from office” and the lawyers in question were “unfit to practice law and to perform the functions of officers of the court.” They called upon the Board of Governors of The Florida Bar and the Grievance Committee for the Eleventh Judicial Circuit of The Florida Bar “to review the conduct of the participants in this case with a view to disciplinary action and disbarment.”

The assigned judge was of the opinion that the investigation and report were authorized under the decisions of this court in In re Report of Grand Jury, 1943, 152 Fla. 154, 11 So.2d 316; Owens v. State, Fla.1952, 59 So.2d 254; and Ryon v. Shaw, Fla.1955, 77 So.2d 455, and declined to grant the State Attorney’s motion to suppress the portion of the interim report in question. However, upon the motion of John Wright, the attorney named in the report who had been appointed guardian ad litem of the estate, the assigned judge expunged from the record the statement in the interim and final reports finding that Wright was “unfit to practice law and to perform the functions of an officer of the Court” on the ground that this conclusion was not supported by the factual allegations made therein. This order was appealed by the State and was consolidated for oral argument with the appeal in the instant case. See State ex rel. Stephenson v. Wright, 93 So.2d 104.

The ultimate question here is whether a grand jury may investigate the official conduct of a judge and his appointees, of the court of which it is an arm and file á report of its investigation which is openly and frankly slanderous as to the court appointees and contemptuous as to the judge; see Coons v. State, 191 Ind. 580, 134 N.E. 194, 20 A.L.R. 900, without at the samé time filing indictments against them. We have concluded that such a report goes far beyond any authority which, by judicial decision, has been conferred upon grand juries in this state.

This court is committed to the rule that a grand jury may investigate “every offense that affected the morals, health, sanitation, and general welfare of the county,” as well as “county institutions, buildings, offices, and officers and * * * make due presentment concerning theii physical, sanitary, and general condition.’ In re Report of Grand Jury, supra, 152 Fla. 154, 11 So.2d 316, 318. They may make a “fair” report on their findings, even though the report incidentally reflects negligence or incompetence on the part of the public official or officials responsible for undesirable “physical, sanitary and general conditions” reported by them. Owens v. State, supra, 59 So.2d 254, 256; Ryon v. Shaw, supra, 77 So.2d 455.

But except for the decisions of a New York court in Matter of Jones, 101 App. Div. 55, 609, 92 N.Y.S. 275 (not followed in later New York decisions, see In re Wilcox, 153 Misc. 761, 276 N.Y.S. 117, 126), of the Supreme Court of New Jersey in In re Presentment by Camden County Grand Jury, 1952, 10 N.J. 23, 89 A.2d 416, and of a District Court .of Appeal in California, Irwin v. Murphy, 129 Cal.App. 713, 19 P.2d 292, 293 (a libel suit, not a motion to expunge), no authority has been found for grand juries to make reports of unde•sirable conditions found by them, if the report charges or casts reflection of misconduct or maladministration upon a public officer, unless the report is followed by an indictment of the officer. And it is held even by the New York and New Jersey courts that a grand jury is not authorized to elect to file a presentment rather than to find an indictment, if the misconduct or maladministration amounts to a crime for which an indictment may be had. See In re Jones, supra; Appeal of Messano, 1954, 16 N.J. 142, 106 A.2d 537.

The parties here are not in agreement as to whether the report in question discloses the commission of a crime by the principals. In the brief filed on behalf of the grand jury, it is stated that the report does not charge the principals with a crime because it does not allege that they willfully or corruptly performed or failed to perform their duties. But it at least convicted them' — • without indictment, without published evidence, without trial, and without due process of law — of wrongdoing little short of a crime, inevitably blackening their reputations and destroying them in their profession. Such a conviction by a grand jury is not far removed from and is no less repugnant to traditions of fair play than lynch law. The medieval practice of subjecting a person suspected of crime to the rack and other forms .of torture is universally condemned; and we see little difference in subjecting a person to the torture of public condemnation, loss of reputation, and blacklisting in their chosen profession, in the manner here attempted by the grand jury. The person so condemned is just as defenseless as the medieval prisoner and the victim of the lynch mob; the injury to him is just as fatal as if he had been charged with and convicted of a crime. As stated in People v. McCabe, 148 Misc. 330, 266 N.Y.S. 363, 367, a case frequently cited in denouncing grand jury reports such as that with which we are here concerned:

“A presentment [report] is a foul blow. It wins the importance of a judicial document; yet it lacks its principal attributes— the right to answer and to appeal. It accuses, but furnishes no forum for denial. No one knows upon what evidence the findings are based. An indictment may be challenged- — even defeated. The presentment is immune. It is like the ‘hit and run’ motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed.”

The wisdom of the foregoing rule is demonstrated by the Grand Jury report in the Wright case, 93 So.2d 104. Wright was castigated, humiliated and embarrassed by a presentment just short of indictment, although the record and holding of the trial court showed him guilty of no wrongdoing. On the contrary, the Grand Jury presentment itself in one instance recognized the important service that Mr. Wright had rendered in preventing the entry of a substantial judgment against the estate of Mrs. Dowling.

For the future guidance of the grand juries of this state, we repeat the admonition of In re Report of Grand Jury, supra, 152 Fla. 154, 11 So.2d 316, 318, that a grand jury “will not be permitted to single out persons in civil or official position to impugn their motives, or by word, imputation, or innuendo hold them to scorn or criticism. * * * Neither will they be permitted to speak of the general qualification or moral fitness of one to hold an office or position. * * * ” Our holding in this respect is in line with the great weight of authority in this country that “it is improper for a grand jury to present with words of censure and reprobation a public official or other person by name without presenting him for indictment and the accused has the right to apply to the court to have the objectionable matter expunged from the court records.” Ex parte Faulkner, 1952, 221 Ark. 37, 251 S.W.2d 822, 824, and cases cited. If in the course of their investigation of general public affairs they find that neglect or ineptitude is responsible for an undesirable condition, the public welfare dictates that they may make their report even though it incidentally points to an official or officials as responsible therefor. But, as stated in In re Report of Grand Jury, Utah 1953, 260 P.2d 521, 527, “While much good can result from a grand jury calling attention to conditions which they find to be in need of remedying, when the report goes further and impugns the motives and conduct of public officials, the possibility of damaging the reputation of blameless public officials overshadows the good which might result to the public from the filing of such a report.”

We have not overlooked the dictum in In re Report of Grand Jury (Graves case), supra, 152 Fla. 154, 11 So.2d 316, 319, that “if the grand jury makes an investigation on its own initiative and reaches the conclusion that the circumstances warrant suspension rather than indictment or it may be both, it would be derelict in its duty if it did not bring the matter of suspension to the. attention of the Governor.” In that case, the public official in question had been indicted by a previous grand jury and the indictment called to the attention of the prosecuting officials by a subsequent grand jury; and it was against that background that this court declined to expunge the report of a third grand jury recommending that he. be removed from office by th.e Governor. It is noteworthy that in the Graves case, supra, the Grand Jury was further investigating after indictment a constable, who is an executive officer subject to suspension by the Governor as chief executive of the state; whereas, in this case the Grand Jury was investigating a circuit judge, vested with judicial and discretionary powers by our Constitution and subject to removal only by way of impeachment.

The line of demarcation between a legitimate grand jury report and one which unfairly castigates a public official,' without filing ah indictment, may be difficult to draw" in any given case; but that is no reason for ignoring and failing to observe any line. If the report exceeds permissible limits, the assigned judge has the right to expunge the objectionable matter from the report in the exercise of “its inherent power to preserve the integrity of its records or to correct the action of one of its appendages where such action constitutes a violation of court'rules or is in excess of its powers.” Application of United Electrical, Radio & Mach. Workers, D.C.S.D.N.Y.1953, 111 F. Supp. 858, 862.

From what has been said, it is clear that the grand jury, by the report in question, exceeded the permissible bounds set forth in In re Report of Grand Jury, supra, as quoted above, as to all principals, assuming arguendo that the court appointees were public officials. In addition, it made a judicial inquisition into' and report upon the manner in which a judge of the very court of which it is an appendage exercised his judicial discretion. If its investigation disclosed that such discretion was exercised willfully and corruptly, it was its duty to return an indictment against him. See Ex parte Amos, 93 Fla. 5, 112 So. 289. If ho such criminal conduct was disclosed, it had no further jurisdiction in the matter.

In announcing the foregoing views-' we do not necessarily approve of the manner in which certain phases of the litigation under investigation were handled; indeed, had some of the orders been brought here for review, it well may be that we would have entered judgments differing from those of the trial judge. The decisions made by the trial judge were, however, the exercise of a discretionary power vested in him by our organic law and from which no-appeal was taken by the interested parties. It is not official misconduct for a judge to make a mistake when operating within the scope of the power vested in him by law.

In bringing this phase of the matter to a close we feel impelled to commend Honorable George Brautigam, the State Attorney for the Eleventh Judicial Circuit at the time of the presentment in question, for promptly asserting and advocating the rights of the general public in the principles of personal rights and freedom discussed and pronounced herein. His intervention for such purpose was made in the face of great obstacles and during a tornado of adverse public feeling that was generated by the improper presentment complained of. Unlike Pilate, he did not yield to what appeared at the moment to be the popular side of a controversy but performed his duty according to the dictates of his own conscience, as he had the right to do. Subsequent public events indicate he paid a high price for his devotion to duty. Such courageous public service is worthy of this commendation.

The order of the assigned circuit judge refusing to grant the motion to suppress filed by the State Attorney is reversed, with directions to expunge the offending matter from both the interim and final report of the grand jury.

It is so ordered.

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

THOMAS, J., not participating because of illness.


text:
    STATE of Florida ex rel. Gunter STEPHENSON, Acting State Attorney for the Eleventh Judicial Circuit of Florida, Appellant, v. John W. WRIGHT, Appellee.
    Supreme Court of Florida, En Banc.
    Feb. 27, 1957.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellant.
    Richard H. Flunt, Miami, for appellee.
   PER CURIAM.

This is a companion case to State ex rel. Brautigam v. Interim Report of Grand Jury, etc., 93 So.2d 99, relating to the propriety of an interim grand jury report concerning the appellee Wright and others. The appeal in the instant case has been taken by the State from an order of the assigned circuit judge expunging from the record a statement in the interim and final reports of the grand jury relating to the appellee Wright.

In the companion case, we ordered expunged from the record the entire objectionable matter for reasons which are equally applicable to the statements concerning the appellee Wright.

Accordingly, the order appealed from should be and it is hereby affirmed under the authority of State ex rel. Brautigam v. Interim Report of Grand Jury, etc., 93 So.2d 99.

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

THOMAS, J., not participating because of illness.


author: THORNAL, Justice.

text:
    Dewey Colson SMITH, Petitioner, v. CITY OF GAINESVILLE, Respondent.
    Supreme Court of Florida, En Banc.
    Jan. 23, 1957.
    Adhered to on Rehearing March 1, 1957.
    J. C. Adkins, Jr., Gainesville, for petitioner.

      Lazonby, Dell, Graham & Mills, Gaines-ville, for respondent.
   THORNAL, Justice.

By petition for certiorari, petitioner Smith seeks review of an order of the Circuit Court affirming an order of the Municipal Court of Gainesville revoking his driver’s license.

The point for our determination is the constitutionality of Section 322.25(2), Florida Státutes, F.S.A., which authorizes municipal courts to revoke automobile ■drivers’ licenses under certain circumstances.

The facts of the case are not in dispute. Smith was convicted in the Gainesville Municipal Court of violating an ordinance of that city which makes it unlawful for any person to drive an automobile in an intoxicated condition. By the judgment of conviction, the municipal judge revoked petitioner’s driver’s license for one year. An appeal to the Circuit Court of Alachua County followed. The judgment of conviction and revocation of the driver’s license was affirmed by the Circuit Judge. Review of this order of affirmance is now sought.

Petitioner contends that Section 322.25 (2), Florida Statutes, F.S.A., violates Article V, Section 34 of the Constitution of Florida, F.S.A. He further contends that the assaulted statute is a bill of attainder; that it imposes a double punishment for a single offense, and that it constitutes an improper delegation of authority contrary to the organic laws of this State.

Respondent contends that the statute is mot violative of the Constitution, and, on (the contrary, that it imposes upon the ■municipal judge a purely ministerial administrative responsibility.

There can be no doubt that in •the regulation of the use of automobiles on ■.the public highways the State has ample power to require motor vehicle operators to obtain drivers’ licenses. It likewise has the correlative power to impose reasonable restrictions on the use and enjoyment of the license. This, in turn, involves the power to make proper provision for the suspension or revocation of a driver’s license under appropriate conditions and upon the occurrence of stipulated situations. 5 Am.Jur. Automobiles. Sections 151-157; Blashfield Cyclopedia of Automobile Law and Practice, Chap. 12. We, ourselves, have fully recognized this authority. Thornhill v. Kirkman, Fla.1953, 62 So.2d 740. In the case last cited, we aligned ourselves with those authorities which hold that a driver’s license is a privilege, subject to proper regulations. It does not endow the holder thereof with an absolute property right in the use of the public highway. While in Carnegie v. Department of Public Safety, Fla.1952, 60 So.2d 728, we held that a driver’s license cannot be revoked arbitrarily or capriciously, we have nonetheless consistently followed the rule, which appears to be unanimous throughout the country, to the effect that upon a proper showing in accord with the prevailing statutes a motor vehicle operator’s license may be revoked. This certainly is as it should be. It would appear to us to be utterly absurd to hold that a man should be allowed to fill his automobile tank with gasoline and his personal tank with alcohol and weave his merry way over the public highways without fear of retribution should disaster ensue, as it so often does. The millions who lawfully use the highways are entitled to protection against the potential tragedy ever lurking, inherent in this type of law breaking. It is this aspect of protecting the public, rather than as punishment for the offender, that courts have unanimously recognized as justification for revoking drivers’ licenses upon conviction of certain offenses. True the recalcitrant law violator might feel the pain of the loss of a valuable privilege. However, the imposition of pain is not the objective of this law. On the contrary, its primary purpose is to relieve the public generally of the sometimes death-dealing pain recklessly produced by one who so lightly regards his licensed privilege. In re Probasco, 269 Mich. 453, 257 N.W. 861; 108 A.L.R. 1168. Also see Prichard v. Battle, 178 Va. 455, 17 S.E.2d 393; Department of Public Safety v. Koonce, 147 Fla. 616, 3 So.2d 331. Consequently, we cannot agree with the petitioner that this statute is either double punishment or a bill of attainder.

We must now decide whether it comports with that provision of Article V, Section 34 of the Florida Constitution which authorizes the legislature to establish municipal courts “for the punishment of offences against municipal ordinances.”

We have shown that revocation of a driver’s license is not regarded as punishment of the offender. Under the applicable statute, it is an administrative remedy for the public protection that man-datorily follows conviction for certain offenses. Section 322.26, Florida Statutes, F.S.A. Among these offenses are driving “a motor vehicle while under the influence of intoxicating liquor or a narcotic drug.” The mandate applies whether one is convicted by a municipal court of driving while intoxicated in a city or anywhere else by a court of more extensive jurisdiction. When made mandatory by statute, the actual revocation of the license is a mere ministerial or administrative function as distinguished from the exercise of judicial discretion. See Emmertson v. State Tax Commission, 93 Utah 219, 72 P.2d 467, 113 A.L.R. 1174. In revoking the license of the offender, the municipal judge merely follows the mandate of the statute as the administrative representative of the State Department of Public Safety at the municipal level. He has no discretion to exercise. Bartels v. State, 156 Fla. 535, 24 So.2d 40. He is in no sense a State officer. The statute merely imposes this additional duty upon him as an administrative detail supplementary to his judicial functions as a city judge. We find no constitutional objection to the statutory imposition of such duties on a municipal official.

Admittedly, this statute could be much clearer, and it seems to us that those in authority could render a public service 'if they would bring about a legislative clarification. Furthermore, we are not here called upon to pass on that aspect of the law authorizing suspension of a driver’s license by a municipal court. Conceivably, the rule could be different. The provision! before us, however, is not considered offensive to the Florida Constitution.

The petition for certiorari is therefore denied.

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

THOMAS, J., not participating, because, of illness.


text:
    Mark STURKES, Petitioner, v. CITY OF GAINESVILLE, Respondent.
    Supreme Court of Florida, En Banc.
    Jan. 23, 1957.
    Adhered to on Rehearing March 1, 195T.
    J. C. Adkins, Jr., Gainesville, and E. F. F. Brigham, Miami, for petitioner.
    Lazonby, Dell, Graham & Mills, Gaines-ville, for respondent.
   PER CURIAM.

Petition for certiorari is denied, on the authority of Smith v. City of Gainesville, Fla., 93 So.2d 105.

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

THOMAS, J., not participating, because of illness.


author: TFIOMAS, Justice.

text:
    Frances O. WARRINER, Appellant, v. BURDINES, Inc., a Florida corporation, George E. Whitten, Horace F. Cordes, each individually and as officers, agents, employees and servants of the said defendant corporation, and all jointly and severally, Appellees.
    Supreme Court of Florida. Special Division B.
    Jan. 4, 1957.
    Rehearing Denied Feb. 14, 1937.
    Frances O. Warriner, in pro. per., for appellant.
    Dixon, Dejarnette, Bradford & Williams and Warren D. Hamann, Miami, for appellees.
   TFIOMAS, Justice.

A summary judgment in favor of the appellees, who were defendants in the circuit court, was entered by the judge when he concluded that no genuine issue of fact was presented and that the movants should prevail as a matter- of law.

In her complaint the appellant averred that she was maliciously prosecuted when the appellees, acting in concert, caused her arrest and induced the County Solicitor of Dade County to file an information in which she was charged with grand larceny, a charge the appellees knew was false. The pleader detailed the procedure following the filing of the information, related the embarrassment she endured and the damage she suffered, and she repeated the charge that the prosecution was instigated through malice without probable cause.

It was stated in the complaint that she pleaded not guilty upon arraignment, waived a jury and was found not guilty by the Judge of the Criminal Court of Record.

Appellant’s claim, as it is reflected in the complaint, is more apparent than real for she presented but half the transaction by which she was so sorely aggrieved. From the pleadings, court records, and admissions furnished by her in response to ap-pellees’ request for them, it is plain that two charges were preferred against her and that the proceedings beginning with her detention and culminating in the trial were fairly common to both, except for the verdicts. True, she was found not guilty of grand larceny but she was convicted of petit larceny.. In one information both offenses were set out, grand larceny in one count and petit larceny in another. In the first she was charged-with theft of a sweater, a skillet, a percolator and a cigarette lighter; in the second she was charged with stealing a sweater.

Having been haled into court on these related charges, formally made in one information, which were tried at the same time and resolved in-the same finding of the trial court, we think she may not now for the purpose of suing appellees isolate one count and base an action for malicious prosecution upon it, even though she was found innocent of it, for at the same time she was found guilty of its companion. Wingersky v. E. E. Gray Co., 254 Mass. 198, 150 N.E. 164.

In order to recover it would be necessary for the appellant to' prove (1) instigation of the prosecution by the ap-pellees, (2) termination in favor of the appellant, (3) malice on the part of the appellees, (4) want of probable cause, and (5) damage. Glass v. Parrish, Fla., 51 So. 2d 717. There is no occasion for this court to treat of any of these elements save the second. It is clearly shown in the record that she was found guilty of petit larceny, was adjudged guilty of that offense, was subsequently sentenced to pay a fine and to a term in jail upon her default. Moreover, she appealed to the circuit court and that court affirmed the judgment. So, then, the appellant had been subjected to one prosecution which, both upon trial and appeal; had terminated to her disadvantage. This not only precluded proof of one of the indispensable elements- but - also indicated absence of malice • and presence of probable cause.

When we measure the circumstances by the rule recognized in the cited.case, Glass v. Parrish, supra, we come quickly to the view that the circuit judge, was. correct when he decided that no genuine issue of fact required the intervention of a jury and that the coup de grace should be early administered to the litigation.

It would not have been improper for the court to have required the appellees to set out in an answer the conviction of the appellant of the offense- of petit larceny, which she chose to ignore, the while she was suing for damages resulting, f.rom-ma-licious prosecution of the allied charge of grand larceny, but in view of the disclosures she made, and provisions of 30 F.S.A. Rule 1.36(b); Florida Rules of Civil Procedure, that a motion for summary judgment may be made at any time and, in paragraph (c), that it shall 'be granted if the “pleadings, depositions and .admissions on file * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment * * * as a matter of law,” the action which should not have been' brought, and which appellees should not have been put to the expense of defending, was correctly, summarily ended.

Affirmed.

DREW, C. J., ROBERTS, J., and LOPEZ, Associate Justice, concur.


text:
    B. F. GUILFORD, Petitioner, v. Nathan MAYO, as Prison Custodian of the State of Florida, Respondent.
    Supreme Court of Florida, En Banc.
    Feb. 27, 1957.
    B. F. Guilford, in pro. per., petitioner.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for respondent.
   THORNAL, Justice.

Guilford has initiated an original proceeding in this Court seeking a writ of habeas corpus to compel respondent to release him from custody which is alleged to be illegal.

The petition stated a prima facie case for the issuance of the writ. The respondent has filed his return. There is no dispute on the facts. The record shows that on January 25, 1944, the petitioner was convicted and sentenced to the State Prison for the commission of four separate felonies. For one felony he was sentenced to serve two years. For another he was sentenced to serve one year to run consecutively to the two-year sentence. On' each of the other two felonies he was sentenced to serve one year to run concurrently with the other two sentences.

The point of the matter is that he was convicted and sentenced for the commission of each of the four felonies on the same date, to wit, January 25, 1944. On April 2, 1946, the State Attorney- filed a fourth offender information against the petitioner, allegedly under Section 775.10, Florida Statutes, F.S.A. On April 9, 1946, the Circuit Judge found the petitioner guilty of being a fourth offender and on that date sentenced him to imprisonment for life. Petitioner remains in prison in the custody of the respondent under the commitment issued pursuant to the fourth offender conviction.

Nothing at all would be accomplished by burdening this'opinion With an extended discussion of the applicable authorities. It is perfectly clear that the fourth offender conviction and sentence should not have been entered under the applicable statute. Section 775.10, Florida Statutes, F.S.A., reads in part as follows:

“A person who, after having been three times convicted Within this state of felonies or attempts to commit felonies, or under the law- of any other . state, government or country of crimes which, if committed within this state, would be felonious, commits, a felony within this state shall be sentenced upon conviction of such fourth or subsequent offense to imprisonment in the state prison for the term of his natural life.”

We have repeatedly held that under the cited statute in order to justify a conviction as an habitual criminal, the information or indictment must allege and the evidence must show that the offense charged in each information subsequent to the first was committed and the conviction therefor was had after the date of the then last preceding conviction. The sum of this rule is that the second conviction must be for an offense committed after the first. The third conviction must be for an, offense committed after both the first and second convictions. Finally, the fourth conviction must be for an offense committed after each of the preceding three. We think the statute itself is perfectly clear on this last point. See Joyner v. State, 158 Fla. 806, 30 So.2d 304; Scott v. Mayo, 159 Fla. 816, 32 So.2d 821; Perry v. Mayo, Fla. 1954, 72 So.2d 382.

In fairness to the trial judge we might state that the opinion of this Court in Joyner v. State, supra, construing the statute involved, was filed in 1947, while the judgment under attack in the instant case was entered in 1946. The judge, therefore, did not have the benefit of the opinion when the judgment was entered. Nonetheless, the fourth offender information obviously could not support a fourth offender conviction. Furthermore, as pointed out above, the conviction is hot supported by the record before us.

For all practical purposes the return of the respondent concedes' the erroh in the fourth offender conviction 'and life sentence of this petitioner. Unlike Perry v. Mayo, supra, this record does not reflect a situation where even the second offense' followed the conviction for the first offense. We consequently cannot even apply the rule of the last cited case which involved an interpretation of Section 775.09, Florida Statutes, F.S.A.

We therefore hold that the petitioner is being illegally restrained of his liberty and the respondent is directed to discharge him from custody immediately.

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


author: HOBSON, Acting Chief Justice.

text:
    The CLEVELAND TRUST COMPANY, an Ohio corporation, Appellant, v. Athene S. FOSTER and Jack Wentz, Appellees.
    Supreme Court of Florida, Special Division A.
    Jan. 23, 1957.
    Rehearing Denied March 5, 1957.
    Harold Ungerleider and Arthur Winton, Miami Beach, for appellant.
    Worley, Gautier & Dawes and John H. Patterson, Miami, for Athene S. Foster; John M. Murrell, Jr., Miami, for Jack Wentz, appellees.
   HOBSON, Acting Chief Justice.

This is an appeal by the plaintiff from a summary final decree of the circuit court, dismissing the complaint.

On January 19, 19S4, plaintiff-appellant, the Cleveland Trust Company, filed an action at law seeking recovery of a money judgment against appellee Foster. This suit was upon an Ohio judgment, held by the Cleveland Trust Company against Foster, which had remained unpaid. At the time of service of process upon Foster in the suit, the title to certain real estate in Dade County was shown on the public records thereof to be in Foster. On January 28, 1954, a deed was filed of record in Dade County conveying title to the property to appellee Wentz. There was no consideration for this transfer.

The lawsuit of the Cleveland Trust Company resulted in a judgment for that company, which has been affirmed by this court. Foster v. Cleveland Trust Co., Fla., 90 So.2d 464.

While the lawsuit was pending, plaintiff-appellant instituted the suit in equity which resulted in the summary final decree here appealed from, to set aside the conveyance to Wentz as a fraud upon plaintiff-appellant as Foster’s creditor.

Depositions were taken, and affidavits filed. On the basis of the pleadings, depositions and affidavits, the plaintiff moved for a summary decree, contending that there was no genuine issue of material fact and that the conveyance from Foster to Wentz was fraudulent and void as a matter of law.

It is undisputed that appellees Foster and Wentz, both of whom are women, have been very close friends for more than 35 years and have resided together during that time. Each was familiar with the business affairs of the other, and appellee Wentz knew of the indebtedness from Foster to appellant which gave rise to the Ohio judgment. Appellee Foster was served in the law action on January 20, 1954. That evening, when Wentz returned home, Foster advised her of the service of process and they fully discussed the same. Within the next three days, as fast as they could take care of it, appellees consulted a close friend, who was a certified public accountant, about the matter, following which they consulted an attorney who prepared a deed conveying the property to Wentz. This deed was prepared and recorded eight days after Foster was served by the sheriff. Appellee Wentz does not remember seeing the deed or receiving it, or the circumstances regarding its execution. She admits that she gave no money for the deed and that there were no discussions as to the amount of money or the consideration. There were no other papers, such as a contract of sale or closing statement, relating to the transaction. Appellee Wentz frankly admitted that the purpose of the deed was to avoid the possibility of the property being sold under any judgment in favor of the Cleveland Trust Company against ap-pellee Foster. Appellee Wentz further testified that she had executed a will in which she devised the property to Foster, to the exclusion of her own (Wentz’) blood relatives.

The telephone listed for the property is and has always been in Foster’s name. Foster has always paid the utility bills and utility deposits for the property. Income tax returns of the appellee Wentz filed by her from 1941 to 1954 show that her sole reported income consisted only of salaries from her employment. The property was leased for seasonal periods and produced some income. The income tax returns of Foster disclose that she filed such returns as the owner of the property, and reported the income received therefrom as her own income, taking deductions for interest, taxes. depreciation and other allowable items. Foster had sole charge of the property, received and deposited the income from it in her own bank account, and disbursed funds from her account for the payment of expenses in connection with the property. Homestead exemption was granted to Foster on this property every year from 1935 to 1954, inclusive. The last application for homestead exemption was filed by Foster on March 23, 1954, almost two months after her conveyance of the property to Wentz. In that homestead application, Foster represented that she was the owner of the property and resided thereon. Foster maintained complete insurance on the property, paid the premiums thereon, and continued to carry this insurance, even after the conveyance of the property to Wentz, and in all of such policies Foster was named as assured.

Foster has no other property which could be levied upon to satisfy appellant’s judgment.

Notwithstanding the deed of conveyance of January, 1954, Foster has continued in full use and possession of the premises in the same manner and to the ■ same extent as that which existed prior to the conveyance.

It is interesting that 24 Am.Jur., Fraudulent Conveyances, Sec. 14, lists certain commonly recognized indicia or “badges” of fraud. The section reads in part as follows:

“The facts which are recognized in-dicia of fraud are numerous, the most important being the insolvency or indebtedness of the transferrer, lack of consideration for the conveyance, retention by the debtor of possession of the property, relationship between the transferrer and the transferee, the reservation of benefit to the transferrer, the pendency or threat of litigation, secrecy or concealment, and the transfer of the debtor’s entire estate.” [Citations omitted.]

It will be noted that every one of these indicia are present in the instant case, with the exception of secrecy or concealment, since the conveyance was recorded. Indeed, on the undisputed facts which we have outlined above this is a more classic case of fraudulent conveyance than confronted us in Temple Terrace Assets Co. v. Wason, 120 Fla. 638, 163 So. 72, wherein we held a conveyance to be null and void and directed that it be cancelled of record. Fraudulent conveyances are condemned in Florida by Chapter 726, Florida Statutes, F.S.A. The conveyance in the instant case on the above facts comes squarely within the provisions of F.S. Section 726.01, F.S.A. and should be cancelled of record.

In the trial court, defendants attempted, by filing affidavits in opposition to plaintiff’s motion for summary decree, to show that the property was held by Foster subject to a resulting trust, of which Wentz was beneficiary. The affidavit of Foster was not served upon opposing counsel until the hearing on the motion for summary decree. Objection was made by counsel to the consideration of this affidavit, and this objection, of course, should have been sustained under the Rules. The motion of defendants for summary decree, which was granted, was made orally at the hearing and without any notice to the plaintiff. Rule 1.36(c), Florida Rules of Civil Procedure, 30 F.S.A., provides in part, in connection with a motion for summary judgment or decree:

“The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve opposing affidavits * * ” [Emphasis added.]

We recently had occasion to emphasize the importance of scrupulously observing the notice requirements of the Rules in connection with motions for summary judgment or decree in Cook v. Navy Point, Inc., Fla., 88 So.2d 532. If these requirements are not fulfilled, both in letter and in spirit, the summary judgment procedure may become a vehicle of injustice rather than a salutary medium of reaching a swift but just result on a pure matter of law, as intended by the framers of the Rules. The situation confronting us here is to be distinguished from that which we considered in Roberts v. Braynon, Fla., 90 So.2d 623, opinion filed November 6, 1956, which involved a pretrial conference.

We find it unnecessary to develop the procedural point further, however, because it is plain that in this case defendants did not provide enough evidence, either properly or improperly, to support the summary final decree in their favor, and the facts which we have stated earlier in this opinion stand uncontroverted. The decree appealed from must therefore be reversed and the cause remanded with directions to set aside the conveyance of January 28, 1954 and to cancel such conveyance of record. This result places the parties in exactly the position they occupied before the unlawful transfer was made. If, on the other hand, appellee Wentz has an interest in the property involved in this litigation, she should not be deprived of her right to demonstrate and enforce such interest by appropriate proceedings. The judgment we have reached is therefore without prejudice to the right of appellee Wentz to bring or participate in this or any other appropriate proceedings as she may be advised, to demonstrate such interest as she may have in the subject property.

It is so ordered.

THORNAL and DREW, JJ., and BIRD, Associate Justice, concur.


author: ' PER CURIAM.

text:
    Mario CADENCIO, Appellant, v. Don Ward THOMPSON, individually and d/b/a Standard Service Station, Dorothy Schellenberger, and John Sachs, Appellees.
    Supreme Court of Florida, Division B.
    March 1, 1957.
    Klein, Moore & Kline, Miami Beach, for appellant.
    Fleming, O’Bryan & Fleming and Harrison D. Griffin, Fort Lauderdale, for ap-pellees.
   ' PER CURIAM.

This cause came on to be heard on the motion of appellees to affirm the judgment appealed from pursuant to 31 F.S.A. Rule 38 of the rules of this court and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly Ordered, Adjudged and Decreed that the motion to affirm the judgment appealed from be, and the same is hereby granted, and the judgment is

Affirmed.

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


text:
    Byron McGUIRE, Appellant, v. George E. HOLT et al., Appellees.
    Supreme Court of Florida, En Banc.
    Feb. 27, 1957.
    Anderson & Nadeau, Miami, for appellant.
    Dubbin, Blatt & Schiff, Miami, for ap-pellees.
   PER CURIAM.

It now appearing that the questions raised in this cause were settled and disposed of by the decision of this court in Gray v. Golden, Fla., 89 So.2d 785, and are now moot,

It is accordingly Ordered, Adjudged and Decreed that the said cause be, and the same is hereby, dismissed on authority of the last cited case. See also Chapter 31420, Acts of Extraordinary Session of the Legislature 1956.

It is so ordered.

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

HOBSON and THOMAS, JJ., not participating.


text:
    Virginia DELANY, Appellant, v. BREEDING’S HOMESTEAD DRUG CO., a Florida Corporation, Appellee.
    Supreme Court of Florida, Special Division A.
    Feb. 26, 1957.
    Sylvester P. Adair, Homestead, for appellant.
    Blackwell, Walker & Gray, Miami, for appellee.
   THORNAL, Justice.

Appellant Delany, who was plaintiff below, seeks reversal of a summary judgment in favor of appellee Breeding’s Homestead Drug Co., defendant below, in a negligence action.

The only point to determine is whether ■there was a genuine issue on a material fact sufficient to preclude the entry of the summary judgment.

Appellee Breeding operated a drug store in the City of Homestead, For the convenience of its customers, appellee operated and maintained a parking lot- at the rear -of its store. About 7:15 p. m. on the night in question, Mrs. Delany' entered the parking lot in an automobile driven by-her husband who parked the car at about the center ■of the lot. Intending to mail a letter at a mailbox on the corner and then enter the -drug store to make some purchases, Mrs. Delany got out of the automobile alone. She proceeded across the lot toward a sidewalk. The parking lot was bordered by 4" x 4" black, bumper logs, obviously placed around the lot so as to prevent the automobiles from being driven ;upon.the sidewalk area. She proceeded in the dark between two parked vehicles. As she was about to emerge onto the sidewalk from between the two automobiles,, she tripped- over. a bumper log with resulting injuries. Her deposition reveals that she was not hurrying and was walking in a normal fashion. She stated that she had not been -on -the lot previously although she was aware of the fact that possibly some of the, other parking lots in Homestead .used similar bumper logs. Her husband’s deposition was rather confused as to whether or not she had previously been on the lot. She did not see the bumper log before she tripped over it. The trial judge apparently was of the view that she was guilty of contributory negligence as a matter of law and granted summary final judgment for the defendant. Reversal of this judgment is now sought.

The plaintiff-appellant contends for reversal. on- the proposition that she had a' right to. expect the route that she followed to be free of this particular physical impediment and that she did not fail to use reasonable care for her own safety under the circumstances. ;

It is the contention of the appellee that appellant walked into an unfamiliar area in the darkness of night without exercising due caution for her own safety.

We are confronted with the application of the proper rule where an injury occurs under circumstances complicated by the darkness of night. At first glance our long list of precedents on the subject might appear to present conflicts within our own decisions. Actually, we think they do not. The conflict is more apparent than real. A careful analysis of the cases suggests certain well-defined rules or principles. The application of these rules to particular facts has produced the difficulty. We think it well to summarize some of these holdings herewith to demonstrate their consistency and to provide a guide to the handling of similar future cases by the trial courts.

The applicable principles were reviewed in our opinion in Rubey v. William Morris, Iric., Fla.1953, 66. So.2d 218. We there gave full recognition to the general rule that one who enters a totally unfamiliar area in the darkness is riot justified, in the absence of 'any special stress, in proceeding without first ascertaining whether there are any obstacles to his safe progress. The effect of this general rule is that the darkness, which precludes the effective use of one’s eyesight, is in and of' itself sufficient warning to signal caution to one entering into an unfamiliar situation. Conversely, if a person under these circumstances fails to heed the signal, he is guilty of contributory negligence as a mater of. law if injury ensues because-of his own failure or-disregard of reasonable caution for his own safety. Shearman and Redfield on Negligence, Vol. 1, Sec. 131, Rev.Ed.1941; Norman v. Shulman, 150 Fla. 142, 7 So.2d 98. The basic essentials to the application of this general rule are: (1) darkness that makes ineffectual the normal use of one’s eyes, and (2) an unfamiliar area or situation wherein the injured person has no right to assume that his course is clear, unobstructed or without defect. We mention some af the cases illustrative of the application of this rule.

In Norman v. Shulman, supra, the plaintiff-invitee was injured when she proceeded down a stairway in the dark. There was no defect in the stairway. Because of the darkness, and that alone, plaintiff failed to gage accurately the distance of her final step. She was guilty of contributory negligence.

In Tutwiler v. I. Beverally Nalle, Inc., 1943, 152 Fla. 479, 12 So.2d 163, a prospective tenant of a building, in the dark, opened a door thinking that she was entering a closet whereas the door opened upon a flight of stairs. There was no defect in the stairway. Her injury resulted purely and simply from her failure to exercise reasonable caution dictated by the presence of darkness.

Again in Feigen v. Sokolsky, Fla.1953, 65 So.2d 769, a hotel guest attempted to descend a stairway in the darkness. There was no defect in the stairway. She merely entered blindly into an unfamiliar situation in the dark. We held that she failed to exercise reasonable care for her own well-being in failing to guard against the hazards of descending a strange stairway in the dark.

In Night Racing Ass’n, Inc. v. Green, Fla. 1954, 71 So.2d 500, the plaintiff was injured when he stepped into a hole in a vacant lot where he had parked his automobile. It was not an established parking-lot. The area was entirely unfamiliar to him and he was injured as he walked rapidly across the lot. This case illustrates clearly the distinction which we hereafter make that under the circumstances the injured party had no right to assume or expect the area over which he walked to be safe for his passage.

Proceeding now to the other aspect of the rule, we have held that if the person injured has a right to assume that the area over which he travels is free of defects or obstructions, then the presence of controlling darkness will not convert his action into contributory negligence as a matter of law if he does no more than to rely on the normal and reasonable assumption that there are no dangerous defects or obstructions. Illustrative of this rule is Rubey v. William Morris, Inc., supra. There a hotel guest entered a bathroom connecting her bedroom. She tripped over a bathmat that barred the entrance to the dark bathroom. Actually, it was necessary for her to cross the obstruction in order to switch on the lights. In this case, with a well-reasoned opinion written by Mr. Justice Sebring, we announced the position that where a party can reasonably expect that there will be no dangers or perils such as the one causing his injury, then he is not contribu-torily negligent merely because of the darkness.

Another case clearly delineating the distinction is City of Palatka v. Woods, Fla. 1955, 78 So.2d 562. There the plaintiff was proceeding in a reasonable manner over a public sidewalk when she fell into a hole in the middle of the sidewalk. This all occurred in the darkness of night. Again we adhered to the rule that she had a right to assume that the sidewalk would be reasonably safe for the purposes for which it was intended, that is, the passage of a pedestrian. She was not barred from recovery merely because there was darkness inasmuch as she was using the walkway in a normal fashion for its intended purpose.

In Goldin v. Lipkind, Fla. 1950, 49 So.2d 539, the plaintiff, a hotel guest, tripped over a mattress lying on the floor of a hallway. True, it was dark, but she had the right to assume that a hotel hallway would not be encumbered by the obstacle which produced her injury.

So it is that we detect the distinction illustrated by the cases summarized -above. In sum, the rule is that unless a person has a right to expect or assume that the -area over which he is passing is to be free •of the defect or obstruction that produces his injury, he proceeds at his peril and as a matter of law is guilty of contributory negligence, if he moves into a strange and unfamiliar area in the darkness of night. It remains for us to apply the proper rule to •the case before us.

Bear in mind the matter was disposed of by the able trial judge on appel-lee’s motion for a summary judgment. We 'have consistently adhered to the rule universally applied that a summary judgment ■should not be entered if there is a genuine issue on a material fact that should be •tried before a jury. This is so for the simple reason that we still recognize the important place which the jury occupies as an arbiter of the facts. Unlike many of the ■continental countries which have dispensed with the jury system, Florida continues to .adhere to the proposition that a trial jury is the most effective procedural method •for arriving at the truth when the material facts are in dispute. We fully realize the •value of summary judgment procedures in expediting the disposition of cases and in disposing of those matters where the material facts are not in conflict. It appears ■to us that the factual situation in the case -at bar is almost in a “twilight zone” insofar -as the proper application of the appropriate rule of law is concerned. The only real issue on the question of negligence or contributory negligence under the rules we 'have above announced is whether Mrs. Delany had a right to assume that the course which she took in leaving the parking lot would not be encumbered by the defect or obstruction which apparently produced her injury. It appears to us that the situation is such a close one that it should have been presented to a jury to decide.

Unlike the Massachusetts court in Brooks v. Sears, Roebuck & Co., 302 Mass. 184, 19 N.E.2d 39, a case relied upon by the appellee, we do not feel justified in taking judicial cognizance of the fact that all parking lots are equipped with these so-called “bumper logs”. Actually, from personal experience, we know that many are so equipped and many are not. Whether Mrs. Delany was failing to exercise due care for her own safety when she proceeded in the dark over the unfamiliar area here involved would seem to us to have been a jury question, at least on the basis of the record here presented. It may be that a jury would conclude that she should have used the driveway area over which she and her husband drove into the lot. It may be that the record would show that many people customarily leave parking lots to enter the abutting sidewalk over the nearest and most direct route from their cars. At any rate, applying the rule that we should indulge all proper inferences in favor of the party against whom a summary judgment is being requested, we think that in this case the summary judgment should have been denied and the question of negligence or contributory negligence should be determined only after a full trial of the cause upon its merits.

The judgment is therefore reversed and the cause is remanded for further proceedings consistent herewith.

Reversed and remanded.

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


text:
    SOUTHERN ATTRACTIONS, Inc., a Florida corporation, Petitioner, v. Art C. GRAU, Respondent (two cases).
    Supreme Court of Florida. Special Division A.
    Dec. 19, 1956.
    Rehearing Denied March 26, 1957.

      Cobb & Cole, Daytona Beach, for petitioner.
    Millard B. Conklin, Daytona Beach, for respondent.
   O’CONNELL, Justice.

Grau, respondent and cross petitioner, was plaintiff in the court below and Southern Attractions, petitioner here and cross-respondent, was defendant below; they will be referred to as they were below.

On April 5, 1956, Art C. Grau filed a claim of lien upon all the personal property of Southern Attractions, Inc. located on its premises in South Daytona, known as the “Sea Zoo”, a marine tourist attraction. The lien was for $15,500 “or more”. Subsequently, plaintiff filed, on the chancery side of the circuit court, a petition for enforcement of lien. Thereafter the, defendant was served with a notice to show cause, within five days from the date of service, why such claim should not be paid. The defendant in response to the notice to show cause filed its affidavit of defense, signed by its counsel, and also filed and served upon plaintiff motion to quash, motion to dismiss, and motion to strike.

Count One of the petition alleged that plaintiff had been employed by defendant under a contract whereby he was to serve as a “promotion and advertising manager and as general manager of defendant’s enterprises” for five years at a salary of $10,-000 annually, $6,000 of which was to be paid per year in cash and the balance of $4,000 in either cash or common stock. In addition, he was to receive either 3% of all gross receipts from the operation of the Sea Zoo or 25% of the net profits, whichever was the greater. Plaintiff contended that the $6,000 in cash per year had been paid but he had not received the balance of $4,000 per year in cash or stock nor any additional amount from gross receipts or net profits, as provided. He alleged that he was hired on May 15, 1953 and fired March 2, 1956, that he had fully performed his part of the contract and was entitled to the amounts claimed, and that he was entitled to a lien under the provisions of Section 85.09, Fla. Stats.1955, F.S.A., and that he was also entitled to the use of the summary proceedings provided for in Chapter 86, Fla. Stats.1955, F.S.A., for the enforcement of such statutory liens. Count One asked the court to enter its decree in favor of Grau,for the sum of $11,155.33, such being the amount due plaintiff as the balance of annual salary and wages due him for his services for two years and nine and one half months which he claims to have worked under his said contract of employment; the count also asked the court to order an accounting so that the gross receipts or net profits could be determined. Count Two realleged all matters of Count One, expressed plaintiff’s doubt as to his rights under the contract, asked for additional lien against the property of defendant for amounts due and to become due for the life of said contract, and asked the court to construe the terms and provisions of the contract, determine the validity thereof, and, in the event it determined the contract to be valid and binding, to determine then what amounts were and would be payable to the plaintiff up until date of the petition and in the future. The court denied the motion to quash, motion to dismiss and motion to strike Count’ One of the petition and then made the following statement:

“The Court further being of the opinion that Count Two (2) of the Petition for Enforcement of Lien (this Count seeks to [e]nvoke the equitable jurisdiction of the Court upon Chapter 87 Florida Statutes of 1955 [F.S.A.] — the Declaratory Decree Chapter) does not properly come with- ■ in the provisions of said Chapter, it is
Ordered, Adjudged and Decreed that the Defendant’s Motion to Dismiss Count Two (2) of said Petition for Enforcement of Lien is granted, and said Count Two (2) is hereby dismissed.”

The court further denied motions of plaintiff to strike the affidavit of defense, motion to quash, motion to dismiss and motion to strike and for entry of a default judgment and for summary judgment; it ordered the parties to prepare for pre-trial conference.

Defendant filed with this Court its petition for writ of certiorari, contending that Count One should have also been dismissed. Plaintiff filed a cross-petition for certiorari contending neither count should have been dismissed.

Defendant questions the propriety of plaintiff’s using Secs. 85.09 and 86.06, Fla. Stats.1955, F.S.A., in a contract claim and filing of the action in Chancery rather than Law.

Sec. 85.09 provides that liens prior indignity to all others accruing thereafter shall exist:

“In favor of persons performing labor or services for any other person, upon the personal property of the latter upon which the labor or services is performed, or which is used in the business, occupation, or employment in which the labor or services is performed.”

Defendant claims that the statute is provided for those who need its help in getting back wages and that therefore it is designed for laborers and not for those in managerial positions. It contends that the cases in this jurisdiction have indicated that the proper interpretation of the statute is that the labor of services must be performed upon the personal property or be performed so closely in connection with such labor on the property that it could be considered as such labor, citing the following: Florida Travertine Corp. v. Staples, 1933, 112 Fla. 344, 150 So. 599, Griffith v. Hulion, 1925, 90 Fla. 582, 107 So. 354, and Flynn-Harris-Bullard Co. v. Johnson, 1925, 90 Fla. 654, 107 So. 358. In the Travertine case a lien was allowed for a superintendent for his services, such lien being upon the “personal property used in the business in connection with which plaintiff has been employed and served as superintendent, for which service plaintiff’s salary has remained unpaid”. [112 Fla. 344, 150 So. 600.] In the instant case the lien, under Count One of the petition, is sought for the balance of salary. The fact that such balance was to be paid in stock does not alter the principle, even in view of the fact that additional amounts were claimed from gross receipts or profits.

In the Griffith case, supra, a woods rider was concerned. The Court said it having been shown by the evidence the services pertained to the production of the personal property subject to the lien and such services were so closely connected therewith, the services were as contemplated by the statute. And in the Flynn-Harris-Bullard case, supra, the Court implied the lien applies for services or labor on personal property upon which they performed labor or services. But in Palm Beach Bank & Trust Co. v. Lainhart, 1922, 84 Fla. 662, 95 So. 122, it was held that the supervising ■of the erection of a building and the selection of materials to be placed therein was such labor as the statute contemplated:' The statute referred to in that case was Section 3496, Revised General Statutes,, of Florida, 1920. It provided a lien should exist:

“For labor on buildings and structures. — In favor of any mechanic, laborer or other person who shall perform by himself or others any labor upon, or in the construction or repair of any building or other work or structure, or additions to or upon any fixtures therein or thereon; upon such buildings, work or structure and the land upon which it stands.”

In the instant case the plaintiff ■was hired not only as a promotion manager hut as manager of the operations of the ‘Sea Zoo. We cannot see how such managerial duties performed by plaintiff ,can be distinguished from those of the Traver-tine and Palm Beach Bank cases, supra. In each of those cases supervisory duties were involved. It is quite true that the' duties of plaintiff did not call for labor or ■services on the personal property of defendant and were perhaps not as closely ■connected with the production of personal property as in the Flynn-Harris-Bullard case, supra. But the wording of the statute in question seems to be devoid of any ambiguity. It does not state that the labor must be done on the property. It does say a Iien-applies for those performing labor or services for others and that such lien can apply ■either to the personal property on which such labor or services was performed or the lien may apply to personal property in the business in which such labor or services was performed. It might well be that at common law no such lien would apply and that hence our statute is in derogation of the common law and subject to strict interpretation. 53 C.J.S., Liens, § 9, p. 854 states that at common law the debt must have been incurred for some services or work performed by the claimant on the property against which the lien is asserted. However, even giving a very strict construction to the statute it appears that a clear intent was expressed that a lien shall exist in such a situation as found in the instant case.

Having established that under the provisions of Sec. 85.09, Fla.Stats.1955, F.S.A., a lien does exist on the personal property of a business in which one performs managerial duties, it is next necessary to determine whether the claimant in the present case proceeded properly in the enforcement of such lien.

Chapter 86, Fla.Stats.1955, F.S.A., provides various ways of enforcing “all liens provided for by the foregoing chapters”. If a lien attaches under Chapter 85 then it naturally follows that it may be enforced as a matter of right under Chapter 86.

While the record does not reveal that the claimant, in the petition to enforce his lien, specifically stated he was proceeding under the terms of F.S. § 86.06, F.S.A., it is apparent he was so proceeding, because he asked in his petition that Southern Attractions, Inc. “show cause, before this Court, within five (5) days, as provided by statute, why petitioner’s said claim and claim of lien should not be paid or enforced.” No other section of Chapter 86 provides that cause be shown within 5 days. Consequently, it follows claimant, upon stating “as provided by statute” was referring to F.S. § 86.06, F.S.A. The record does reveal that the petition was filed in the circuit court sitting in chancery.

The defendant argues that the plaintiff erred in bringing his complaint on the equity side of the court primarily because it involved a complicated contract matter and called for a jury trial of factual issues. It objects to the use of Sec. 86.06 to enforce the alleged lien in that such summary procedure was simply not designed to handle the complicated matter of this type controversy. A chancellor, says the defendant, has no way to empanel a jury and Section 86.06(5) calls for the summoning of a jury.

Statutes creating liens usually provide the manner in which they are to be enforced and some jurisdictions say that if such is the case a court of equity has no jurisdiction to enforce the lien. But on the other hand some cases hold a lien can be enforced in equity unless the legislature in the statute impliedly excluded the right to proceed in equity. 33 Am.Jur., Liens, Sec. 44. Where the statute creates a lien but no adequate or exclusive remedy is provided for, enforcement in equity may generally be resorted to. Milton v. City of Marianna, 1932, 107 Fla. 251, 144 So. 400. Foreclosure of Liens is a matter of equitable cognizance within the jurisdiction of the circuit courts under art. 5, Sec. 11, Fla. Constitution, F.S.A. Brickell v. Palbicke, 1936, 123 Fla. 508, 167 So. 44. In the section by which the claimant seeks to enforce his lien there is no actual designation as to on which side of the court the petition must be filed. There is, however, sufficient language present which implies the action should be at law and not in equity. The first sentence of the section reads as follows:

“By any person claiming a lien for labor performed, his legal representative, agent or assign making or filing in the court having jurisdiction of the amount of the lien claimed * * (Emphasis added.)

Jurisdiction based on amount of claims involved exists in courts of law, not in equity. Also, the section calls for a jury trial if desired. And in sub-section seven (7) we find;

“Upon the entry of a judgment, as hereinbefore provided, the petitioner may sue out his writ of execution, as in the case of other executions on judgments of suits at law.’1 (Emphasis added.)

This question was dealt with somewhat in the case of McCluskey v. Klock, 1948, 160 Fla. 537, 35 So.2d 646, where petitioner secured a rule to show cause why the party claiming a lien should not be compelled to' enforce his claim of lien. The chancellor ordered claimant to commence a foreclosure suit or have the claim cancelled. Claimant did not institute an action for foreclosure but instead proceeded under F.S. § 86.06, F.S.A. This Court held it might have been appropriate, since he was already in a. court of equity, to file foreclosure proceedings, but he was given by law the right to proceed under Sec. 86.06 and the chancellor’s order did not specify he must proceed in equity (and that, furthermore, it was doubtful that the chancellor could have properly governed the forum for enforcement proceedings). From a reading of this case it becomes apparent that the law side of the court is the proper forum for proceedings under F.S. § 86.06, F.S.A.

The plaintiff next complains that the affidavit of defense was invalid in that it was signed by the counsel for defendant rather than defendant himself as he contends is called for in the statute, Sec. 86.06(2). This section allows defendant to move to quash or file an affidavit denying the facts. It provides that such affidavit shall be filed by the person against whom such lien is claimed or any other person claiming an interest in the property. In the instant case the defendant filed both a motion to quash and an affidavit of defense.

The statute in question does not say the party must file an affidavit signed by himself. Nor do we believe that the statute requires him to do so. Plaintiff cites Beverette v. Graham, 1931, 101 Fla. 563, 132 So. 826, as authority for the statement if the rule or statute requires .verification to he by the party in person, no one else may make it. This case has never been cited since its writing on this point until now and cites as its authority for such statement no previous Florida cases.-- The verification there referred to was t.o- a pleading which was necessary to invoke the jurisdiction of the court. In 2 C.J.S., Affidavits, § 6 it is said that under a statute requiring an affidavit to be made .by a particular person himself, his agent or at-, torney cannot make it, but if the statute- is silent as to who can make it, the attorney can..' An attorney may make an affidavit for a party if he knows the facts. And it is within the discretion of the court to receive the affidavit of an agent or attorney in situations where a different construction of the statute might defeat the ends of justice. 1 Am.Jur., Affidavits, Sec. 5..

The next contention of the plaiit-' tiff is that if the affidavit of defense was invalid, the only thing left was the motion to quash and since the court overruled that' he should have immediately received judgment, as in default. Sec. 86.06(4), Fla. Stats.1955, F.S.A. He also contends that even if the affidavit be. considered valid, it did not deny the facts as required by the statute. On the contrary, we find .that defendant specifically denied performance on the part of the plaintiff. 30 F.S.A. Fla.R.Civ.P. 1.36(e) requires that the affi-ant have personal knowledge. In his ac-'-knowledgement before a notary the attorney making the affidavit for defendant said it was of his own knowledge. Consequent-' ly, although the motion to quash was over*ruled, there still remained a valid affidavit . of defense and the cause should properly proceed on to a trial of the facts. It nece's-" sarily follows that plaintiff should have been denied his motion for summary judg-C ment. The question of performance on the part of plaintiff is at issue.

The plaintiff filed his cross-petition for certiorari contending that his second count should not have been dismissed and •that the first count should not be dis-11 missed. The second count asked for a declaratory decree and also concerned wages ' which would have been earned in the future, had the contract not been cancelled. Petitioner has no right, in a proceeding for the enforcement of a lien, to claim a lien for future damages for breach of contract (wages which would have been earned had the contract not been breached). We do not think .Sec. 85.09 can be construed to ■ give one a lien for services not yet performed. Nor does Sec. 86.06 provide a rémedy for enforcement of such a claim.

■ Plaintiff maintains that his petition for a declaratory decree met the requirements of Chapter 87 and that he could ask for such under the provisions of Ch. 87. Defendant points out that the order of the trial court does not deprive plaintiff of his right to seek a declaratory decree, but merely says it could not be under Chapter 86i Plaintiff still has the right to bring a separate suit asking for his declaratory decree, if he can bring himself within the provisions of that Chapter. However, see Palmer v. Edwards, Fla.1951, 51 So.2d 495, where the Court said that the party was convinced he had a claim so it was superfluous for him to seek a declaratory decree.

Nevertheless, we do not now rule on whether a bill for a declaratory decree will stand but do uphold the lower court’s dismissal of the second count of plaintiff’s petition on the ground he could not properly seek such relief under the provisions of F.S.. Chapter 86, F.S.A.

The last contention of the plaintiff is that the defendant’s appeal was pre--maturé, because the order attacked is not a final order. It is to be remembered that plaintiff argues that his action is properly on the equity side of the court. But now he contends that the trial court denied to take .equitable jurisdiction on either count and that therefore the defendant cannot appeal this interlocutory order but can only appeal a final judgment, as 31 F.S.A. Fla. Supreme Ct. Rule 14 does not apply to interlocutory orders in law. Saffran v. Adler, 1943, 152 Fla. 405, 12 So.2d 124. But in this case the lower court was sitting in chancery and did not transfer the case to the law side of the court. Consequently, the order sought to be reviewed was an interlocutory order in equity and is properly the subject of a review by a writ in the nature of certiorari. Fla.Supreme Ct. Rule 14.

Accordingly we hold that the chancellor committed no error in dismissing the Count Two, of the petition for enforcement of lien and. that he was not in error in refusing to strike or quash Count One thereof. We also hold that the petition was filed on the wrong side of the court and that upon motion in the lower court made by the plaintiff within 30 days of the entry of the mandate of this Court that this cause shall be transferred to the law side of the court, otherwise the cause shall stand dismissed.

The petition for writ of certiorari is granted in part and the cross petition is denied, with directions that further proceedings be had herein consistent with this opinion.

HOBSON, Acting C. J., and SEBRING and THORNAL, JJ., concur.


author: PONDER, Justice.

text:
    231 La. 834
    Mrs. Ottis T. DOZIER, Wife of, and Robert T. WILLIAMS, v. DIXIE LAND COMPANY.
    No. 42030.
    Supreme Court of Louisiana.
    Dec. 10, 1956.
    Rehearing Denied Feb. 25, 1957.
    Daniel Wendling, New Orleans, for defendant-appellant.
    Ivy A. Smith, Jr., New Orleans, for plaintiff s-appellees.
   PONDER, Justice.

This is an appeal from a judgment in favor of plaintiffs in the amount of $2,777.-19. Plaintiffs answered the appeal asking for an increase in the judgment to the amount of $3,377.19.

Plaintiffs brought suit on a bond for deed contract asking to be decreed the owners of the property described therein, for an accounting of the balance due to the defendant on the purchase price of the property, alleging that payments have been refused by the defendant; in the alternative, plaintiffs asked that in the event the court decides that the contract is a bond for deed or executory contract of sale, then plaintiff alleges that defendant has made said contract impossible to perform by refusing further payment; that plaintiffs were not put in default according to the provisions of LSA-R.S. 9:2945; that in the event the property has been transferred to an innocent third party then plaintiffs allege that they are entitled to damages in the sum of $2,500 with interest and costs which is the present market value of the five lots in question. By supplemental petition the amount of damages asked for was increased to $3,600.

Defendant answered alleging the plaintiffs defaulted on the contract many years ago, that the lots were sold by defendant on June 18, 1953 and that on or before the sale a check was forwarded to the plaintiffs returning to them all of the money which they had paid.

The record shows that the parties entered into a bond for deed contract on August 26, 1938 for the purchase of five lots for the sum of $605. At the time of this sale $5 was paid in cash and the balance was payable in consecutive monthly installments of $8 each, with 7% interest per annum, the purchasers to pay all taxes.

The facts as to payment are correctly summed up by the trial judge in his written reasons for judgment thus:

“From August 26, 1938, up through October 23, 1945, plaintiffs made monthly payments in various amounts, more or less than $8.00, at times skipping a month or two; but by October 23, 1945, $785.00 had been paid by the plaintiffs on account of principal, interest and taxes. At that particular time, according to the testimony of Mr. Whitmore, a building and loan expert, there was a balance of approximately $180.00 due on the purchase price. From October 23, 1945, until June 28, 1950, nothing apparently was done between the parties, although each claims attempts to locate the other, without avail. On June 28, 1950, defendant received and accepted from plaintiffs an additional $10.00. Thereafter, nothing was done until July 15, 1953, when the defendant addressed a letter to the plaintiffs at their residence, 924 North Prieur Street, to the effect:
“ ‘Since you have defaulted on your agreement to purchase Lots 11 to 16, in Square 4, I hereby return your payments in the amount of $790 on the above property.’

The record shows that the plaintiffs returned this money to the defendant and the property was actually sold to a man named Washington on June 18, 1953 before the letter was sent to plaintiffs.

It was the opinion of the trial judge that the contract in question is governed by LSA-R.S. 9:2945 and under the provisions of that statute when the purchaser under a bond for deed contract is in default the vendor is required to give notice by registered mail, that unless payment is made as provided in the bond for deed within 45 days from the mailing date of the notice the bond for deed will be cancelled. The required 45 day notice provided for in that statute was not given here but merely notice of summary cancellation of the agreement accompanied by a return of all installments paid. As the trial judge pointed out even if the notice provided for in the statute had been given, defendant could not have complied, because defendant had already sold the lots to a third party.

We agree with the conclusion of the trial judge herein that the provisions of LSA-R.S. 9:2945 relating to the 45 day notice are clear and mandatory. Since the statute was not complied with the plaintiffs are entitled to recover the value of the lots as of July, 1953 when the “abortive” notice of default was given to plaintiffs.

The trial judge concluded from the evidence that the value of the lots was $3,000 and allowed judgment for that amount less a credit of $222.81 representing a balance due on the purchase price and interest and taxes then due. In this Court the appellee has answered the appeal asking for an increase in the judgment. We have carefully read the evidence adduced at the trial of this case and conclude that the figure set by the trial judge is correct.

For the reasons assigned, the judgment is affirmed at appellants’ costs.

SIMON, J., concurs in the decree.

FOURNET, C. J., and HAWTHORNE, J., absent.