text:
    Evelyn J. HAUSER, Petitioner, v. Karl F. HAUSER, Respondent.
    Supreme Court of Florida, Division A.
    March 27, 1957.
    Quentin V. Long of Long, Crouch & Ward, Hallandale, for petitioner.
    Dorothy A. Smith, Fort Lauderdale, for respondent.
   THORNAL, Justice.

Petitioner, Evelyn J. Hauser, by her petition for certiorari seeks review of an order of a Circuit Judge which reversed an order of the Juvenile Court of Broward County entered in a child custody contest.

The parties present several issues but we are compelled to turn our conclusion ex mero motu on the question of whether the order under assault is subject to review in this proceeding.

On July 7, 1954, the Circuit Court of Broward County entered a divorce decree dissolving the marriage of petitioner, Evelyn J. Hauser, and respondent, Karl F. Hauser. By this decree, pursuant to stipulation of the parties, the Chancellor awarded sole and complete custody of the three minor children of the parties to the instant respondent father, who was the plaintiff in the divorce proceeding. Mrs. Hauser thereafter made two unsuccessful efforts to obtain a change of custody through the Circuit Court. Finally on July 28, 1955, she succeeded in obtaining an order from the Chancellor which transferred the jurisdiction of the three children to the Juvenile Court in and for Broward County “for further and other proceedings consistent with law”. This transfer order purported to convey to the Juvenile Judge “authority to make whatever amendments or changes in the orders previously entered herein respecting custody and control as shall seem meet and right under the circumstances”.

The transfer order last mentioned was undoubtedly entered pursuant to the provisions of Section 15, Chapter 22709, Laws of Florida 1945, the same being a local act creating the Juvenile Court of Broward County. By the cited statute the Juvenile Court is precluded from enforcing or changing custody orders of a Circuit Court unless the cause is referred to the Juvenile Court by the Circuit Court by written order such as the one above mentioned. The transfer order was followed by prolonged and extensive hearings, investigations and submission of testimony in the Juvenile Court. This was based on the petition of Mrs. Hauser requesting a change of custody of the children, grounded on the alleged “dependency” of the minors. The Juvenile Judge at one point changed the custody of all three children from the father to the mother. An appeal to the Circuit Court from this order resulted in reversal.

Further hearings before the Juvenile Court resulted in an order of the Juvenile Judge deciding that the three children were dependent and awarding custody of two of them to Mrs. Hauser and permitting custody of the oldest child to remain with Mr. Hauser. This custody change order again was appealed to the Circuit Court. On December 10, 1956, the Circuit Judge again reversed the order of the Juvenile Judge. It is this last order of reversal which petitioner Mrs. Hauser now requests this Court to review on certiorari.

In his order of reversal the Circuit Judge stated that an examination of the record led him to the opinion “that there was insufficient substantial testimony” to support the finding of dependency. He stated further that in his opinion “the weight of the evidence” indicates that the children are well and properly cared for by their father. He then ordered that the order of the Juvenile Court declaring the children to be dependent and transferring custody of two of them to the mother “be and the same is hereby reversed.”

The petitioner here now contends that the Circuit Judge had no authority to evaluate the evidence which constituted the basis of the Juveuile Judge’s order. On the other hand, she contends that the scope of review available to the Circuit Judge was limited merely to a determination of whether the Juvenile Judge entered “a lawful order” as stated in Section 39.14(7), Florida Statutes, F.S.A.

The respondent father here contends that the Circuit Judge as an appellate court had the power to determine whether the order of the Juvenile Judge was founded on substantial evidence ,and, having found that it was not, acted within the orbit of his jurisdiction in reversing the Juvenile Court order.

The unfortunate victims of this tragic domestic contest are the three innocent children who have in no measure contributed to this hassle between their parents. It is not a rare or unusual situation. It is one that recurs with tragic frequency. It is with a degree of regret that we are compelled to conclude that the order presented to us'is not one now subject to review in this proceeding. We would much prefer to be in a position where we might make a contribution toward terminating the affair. However, we cannot do this under the circumstances. Bear in mind that the matter is before us on a petition for certiorari which seeks review of the last order of reversal entered by the Circuit Judge. A casual examination of this order will demonstrate very clearly that it is not an order of such finality as will support review by certiorari in a proceeding of this nature. We hasten to point out that the order under attack is not the customary interlocutory custody order entered by a Chancellor as an incident to a divorce proceeding. On the other hand, it is an appellate order entered by a Circuit Court exercising intermediate appellate jurisdiction over an inferior court.

We have with consistency held that the judgment of a Circuit Court acting as an intermediate appellate court, which merely reverses the judgment of an inferior court, is not a final judgment that will support review by certiorari in this Court. See Davis v. First Nat. Bank of Miami, 153 Fla. 864, 16 So.2d 46, and cases there cited. We recognize one exception to this rule in a situation where the judgment of the Circuit Court reverses the judgment of an inferior court in such fashion and with such directions that would require the inferior court to proceed in violation of the essential requirements of the law should it abide by the judgment of the intermediate appellate Circuit Court. See Midland Motor Car Co. v. Willys-Overland, Inc., 101 Fla. 837, 132 So. 692. No such condition justifying the application of the exception is reflected by the judgment of reversal presented by this record. The effect of the order of reversal is merely to send the matter back to the Juvenile Court for further proceedings consistent therewith. Section 39.14(11), Florida Statutes, F.S.A. Certainly from this order it cannot be concluded that the judicial labor of the Juvenile Court has ended. The situation is similar to an order of an intermediate appellate court reversing a case for a new trial in the inferior trial tribunal. See Robinson v. City of Miami, 138 Fla. 696, 190 So. 35.

No question has been raised as to the constitutionality of the provision in the local act, Chapter 22709, Laws of Florida 1945, authorizing the transfer of jurisdiction over custody to the Juvenile Court. We therefore do not discuss it here. See In re Rouse, Fla.1953, 66 So.2d 42; Rouse v. Hopkins, 3 Fla.Supp. 10. While the briefs of neither party make reference to the last cited case nor to our own decisions hereafter mentioned on the general subject at hand, a reference to these cases in the subsequent handling of this cause might be helpful. As a further guide to the ultimate disposition of the matter we point out that we are not here dealing with a conflict of jurisdiction between the Circuit Court and the Juvenile Court as was presented in State ex rel. Watson v. Rogers, Fla.1956, 86 So.2d 645. In that case the Circuit Judge who had jurisdiction over the divorce proceedings had retained jurisdiction over the custody problem. There we found the Juvenile Court, functioning independently under Chapter 39, Florida Statutes, F.S.A., attempting to assert its jurisdiction over the custody of the minor children of the divorced parents, the control of whose custody had previously been retained by the Circuit Judge as Chancellor.

Likewise in a situation similar to the instant case, we find the jurisdiction of the Juvenile Court under Chapter 39, Florida Statutes, F.S.A., very well defined in State ex rel. Hendricks v. Hunt, Fla.1954, 70 So.2d 301. In our latest consideration of the Juvenile Court Act in Noeling v. State, Fla.1956, 87 So.2d 593, we undertook to define further the extent of the jurisdiction of the Juvenile Court in matters relating to a determination of dependency under Chapter 39, Florida Statutes, F.S.A. In contrast to the issue in said case, we might interpolate that the basic question suggested by the instant record is not one of technical “dependency” of minors inviting the interposition of the State under Chapter 39, Florida Statutes, F.S.A. We are here confronted with a problem of “custody” as between contesting parents with no effort by the State to intervene. See 43 C.J.S., Infants, § 98, p. 230. In Noeling v. State, supra, we clearly pointed out the scope of review available to appellate courts in reviewing orders of a Juvenile Judge with reference to matters falling within his jurisdiction.

Although not entirely necessary to the ultimate decision which we announce herein, we have mentioned these recent cases in the hope that they might be of assistance to the parties and the courts below in the future disposition of this matter and in the interest of bringing this annoying situation to a terminal point.

For the reasons stated, the petition for certiorari will have to be — ■

Denied.

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


source: Caselaw Access Project

author: HOBSON, Justice.

license: Public Domain

text:
    MORTGAGE INVESTMENT FOUNDATION, Inc., a Florida corporation, Appellant, v. J. H. ELLER and Mattie Eller, and Daniel J. Kindel, Appellees.
    Supreme Court of Florida, Special Division A.
    March 27, 1957.
    Rehearing Denied May 9, 1957.
    Fulton, Sullivan & Burns and Phillips & Hathaway, West Palm Beach, for appellant.
    Robert F. Griffith, Jr., Boynton Beach, for appellees.
   HOBSON, Justice.

One Kindel, as plaintiff, brought suit against appellee J. H. Eller seeking specific performance of an alleged agreement to sell and convey certain land. Appellant, Mortgage Investment Foundation, Inc., intervened in the suit claiming under an agreement whereby J. H. Eller and his wife were to convey the same realty to the appellant.

The chancellor heard testimony and dismissed the plaintiff Kindel’s case, finding that the agreement under which he claimed was invalid. The chancellor went on, however, to deny specific performance of the admittedly valid contract under which the intervener claimed because, to quote from the chancellor’s memorandum decision, the defendant, J. H. Eller, was

“ * * * in no position to specifically perform the contract with the Mortgage Investment Foundation, Inc., without subjecting himself to the necessity for awaiting the outcome of the Kindel litigation before he shall be privileged under the contract to receive any part of the purchase price. There is no telling how long that litigation will be pending if an appeal from this Court’s decision made today should be taken, and Mortgage Investment Foundation, Inc., hasn’t evidenced any willingness to pay $44,000 for such interest as the defendant can deliver now, but says that if the title is insured, if it shall be insured, and if the defendant, with Mortgage Investment Foundation, Inc.’s assistance, shall prevail in the Kindel litigation, then and only then will it pay the purchase price.”

The Kindel litgation in fact terminated with the chancellor’s final decree, no appeal from which was taken by the plaintiff Kin-del. Only the Mortgage Investment Foundation, Inc., appealed, contending first that it was error to deny specific performance under the circumstances of the case, and second that at the least it was error to dismiss appellant’s suit with prejudice and without preserving its remedies at law.

In connection with the second point it raises, appellant contends that where the primary relief of specific performance to a buyer cannot be decreed, equity has no jurisdiction to grant damages for breach of contract by the seller, Lewis v. Yale, 4 Fla. 418, but that the failure in equity does not bar the buyer’s remedy at law, Murphy v. Hohne, 73 Fla. 803, 74 So. 973, L.R.A. 1917F, 594, and in such a situation a dismissal should be without prejudice to the right of the complainant to pursue his remedies at law, Levitt v. Axelson, 102 Fla. 233, 135 So. 553. We agree that the minimum relief which must be accorded appellant is the preservation of his rights at law.

This leaves us with the principal question of whether or not the chancellor committed reversible error in refusing specifically to enforce a valid contract to convey land under the circumstances of this case. Specific performance is a remedy which lies within the discretion of the chancellor, but this discretion is controlled by well-established doctrines of equitable jurisprudence. Speisberger v. Newman Realty Co., 125 Fla. 342, 169 So. 859; Williams v. Neeld-Gordon Co., 86 Fla. 59, 97 So. 315.

In the case before us it is undisputed that both the buyer and seller knew of the possibility of an adverse claim when the contract which appellant seeks to enforce was entered, and the chancellor so found. There is no suggestion in the record of any misrepresentation, concealment, fraud, overreaching or inequitable conduct of this nature on the part of either the El-lers or the appellant. As the chancellor observed in the quoted portion of his memorandum decision, the appellant required that the title be insured, but it was authorized so to require by the express language of the contract by which it claimed.

The chancellor further observed that the appellant was unwilling to “pay $44,000” before the Kindel litigation was concluded successfully by the defendant therein. The contract sought to be enforced, however, did not require appellant to pay $44,000 in a lump sum, but a deposit of $4,400, a further sum of $8,800 to be paid at the time of closing, and the balance payable in five equal installments of $6,160 each, at interest. Appellant offered in its complaint to pay into the registry of the court all sums due and owing under the terms of the contract and to have the sums so held pending the final determination of the controversy. The sum of $4,400 had been deposited in escrow by the appellant on account of the contract and a copy of the deposit receipt was filed with the complaint. It was also alleged and proved by appellant, as inter-vener, that $8,800 had been tendered by appellant to the seller before the litigation commenced. There was no doubt that appellant at all relevant times was ready, willing and able to purchase the property on the terms specified in the contract, and was tendering sufficient monies for the purpose. Certainly appellant, to do equity, was not obligated to “pay $44,000” to the sellers before the final outcome of the litigation. Moreover, the contract provided that the seller would use reasonable diligence to make the title good and marketable, and should have a reasonable time to do so. This language had the effect of memorializing the understanding of the parties with regard to the possible Kindel claim.

This brings us to a consideration of the main reliance of the chancellor in denying the remedy which appellant sought, namely that an appeal by Kindel to this court, from the adverse decision, would make it necessary for the sellers to await the outcome before receiving any part of the purchase price. All parties were represented in the litigation. It was obvious that any party could appeal from an adverse decision and that the sale of the property, and the seller’s right to the purchase price, might be held in abeyance pending the final outcome of the litigation whether specific performance was granted or not. If the possibility of an appeal by an unsuccessful adverse claimant were a ground for denial of specific performance, the remedy would never be granted in a case involving adverse claimants, because the unsuccessful claimant might always appeal.

We can find no precedent for denial of specific performance upon such ground and, at least under the circumstances of this case, we cannot accept it as a valid basis for the action taken below. Accordingly, the judgment appealed from must be, and it is hereby, reversed and the cause remanded with directions to grant specific performance as prayed for by the appellant herein.

It is so ordered.

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


author: TERRELL, Chief Justice.

text:
    The STATE of Florida, Appellant, v. JACKSONVILLE EXPRESSWAY AUTHORITY, an agency of the State of Florida, Appellee.
    Supreme Court of Florida, Special Division A.
    March 29, 1957.

      William A. Hallowes, 3rd, Jacksonville, and Thomas J. Shave, Jr., Fernandina Beach, for appellant.
    Wm. H. Rogers, Lewis Rhea Baxter and Rogers, Towers, Bailey & Jones, Jacksonville, for appellee.
   TERRELL, Chief Justice.

This appeal is from a decree of the Circuit Court of Duval County validating an issue of refunding bonds proposed by Jacksonville Expressway Authority, hereinafter referred to as Expressway Authority, an agency of the State of Florida created by Chapter 29996, Acts of 1955-, F.S.A. § 349.-01 et seq. Suit to validate was brought pursuant to Chapter 75, Florida Statutes, F.S. A. No controversy arises as to questions of fact or points of law involved.

It is first contended that the outstanding Florida State Improvement Commission bonds cannot be lawfully refunded prior to October 1,1960.

Section 4, Chapter 29996, Acts of 1955, expressly provides for refunding these bonds, the resolution of the Expressway Authority adopted pursuant to said act authorizes such refunding and even though the resolution of the Expressway Authority and said act were absent, the refunding could have been done in the manner approved by State v. City of Orlando, Fla., 82 So.2d 874, which we think forecloses the point.

It is next contended that the Expressway Authority is not authorized to enter into a new lease-purchase agreement with the State Road Department so long as any of the formerly issued Expressway Authority revenue bonds dated October 1, 1950, are outstanding and unpaid.

It is admitted that at the time this suit was brought there were outstanding expressway bonds, issued by Florida State Improvement Commission, aggregating $26,000,000 secured (1) by an equitable lien on the gross tolls from the John E. Mathews and Fuller Warren Bridges and (2) by 80% of the 2‡ gasoline tax allocated to Duval County by State Road Department pursuant to Section 16(c), Article IX of the Constitution, F.S.A., less not to exceed $40,000 thereof previously pledged to secure the bonds of Fernandina Port Authority.

Chapter 29996, Acts of 1955, in terms authorized a new lease-purchase agreement between the Expressway Authority and the State Road Department. The trust indenture authorized by the Expressway Authority pursuant to said act expressly provides that a sufficient portion of the proceeds of the refunding issue shall be deposited with the paying agent of the original issue of October 1, 1950 (Chase Manhattan Bank of New York) and invested in securities of the United States of America, said securities to be held in trust exclusively for payment of principal and interest of said original issue of bonds. This agreement secured the holders of the original bonds dated October 1, 1950, and brought this case within the holding of State v. City of Orlando, supra, so there is no basis for the charge of invalidity as to the lease-purchase agreement between Expressway Authority and the State Road Department.

It is next contended that the irrevocable provision of the lease-purchase agreement is not authorized by law.

Inspection discloses that the lease-purchase agreement between Florida State Improvement Commission and the State Road Department involving a previous but similar issue of revenue bonds by Florida State Improvement Commission contained in effect the same provisions that were necessarily approved by this court in State v. Florida State Improvement Commission, Fla., 47 So.2d 601, a bond validation suit. We find no objection in the Constitution or the statute to the lease-purchase agreement in question. It would certainly be irrevocable against the bonds previously issued until they are paid.

It is next contended that the State Road Department is not legally authorized to pay the cost of operating or completing the expressway system (if it exceeds the proceeds of the proposed bond issue) from sources other than revenues derived from the operation thereof.

The lease-purchase agreement authorized the State Road Department to pay (1) the cost of operating the expressway system; (2) the cost of completing said system if the net amount realized from the sale of new bonds is not sufficient both from sources other than revenues derived from operating the expressway. The Expressway Authority, Chapter 29996, Acts of 19SS, authorized this. See sixth paragraph of Section 7 thereof. See also Florida Highway Code of 1955, Chapter 29965, and Chapters 334-339, Statutes of 1955, F.S.A.

The expressway system was designated a state highway by Chapter 25002, Acts of 1949. See also Sections 90, 104, 119, 122, 123, 124(1) and 139, all having to do with the power and duties of the State Road Department in the matter of leasing, purchasing, construction including agreements to operate and maintain any road or part thereof free from tolls or otherwise in the manner it may deem advisable. Supporting this specific authorization on the part of the State Road Department, see State v. Florida State Improvement Commission, supra, wherein this court approved validation of original issue of expressway bonds issued by Florida State Improvement Commission, to be refunded from proceeds of the bonds involved here. The last cited case would seem to be a complete answer to this question.

The concluding question has to do with that of whether or not the State Board of Administration must approve the fiscal and legal sufficiency of the proposed issue of revenue bonds to perform duties with respect to same and supervise the funds of the Authority.

In its answer to the petition to validate, the state precipitated two questions relating to the function of the State Board of Administration as follows: (1) The resolution authorizing issuance of the bonds in question and the trust indenture to secure them did not prescribe any duties for the State Board of Administration, and (2) the fiscal and legal sufficiency of the refunding bonds in question had not been approved by the State Board of Administration. Sections 344.26 and 344.261, Florida Statutes 1955, F.S.A., are the predicate for these questions.

We do not think these sections have any relation to refunding bonds issued by the Expressway Authority, but if they do, the State Board of Administration by authority of Paragraph C, Section 5, Chapter 29996, Acts of 1955, by resolution unanimously approved and authorized the Expressway Authority to employ banks and trust companies within or without the state as fiscal agents to act as its bond trustees, registrar, paying agent and depository.

It is true that the last cited statutes, at one time imposed limitation on bond issues and lease-purchase agreements by the State Board of Administration, but this is no longer true. Chapter 29996, creating the Expressway Authority as a state agency, authorized it to issue and refund bonds and complete construction of the expressway system. It impliedly repealed said two sections in so far as they related to the expressway and Section 17 of Chapter 29996 expressly superseded them in so far as they relate to the Expressway Authority.

As to whether the State Board of Administration must be trustee for expressway bonds, we think Paragraph C of Section 5, Chapter 29996, Acts of 1955, concludes the point, particularly that part providing that by consent of the State Board of Administration the Expressway Authority may enter into a trust indenture, with any bank or trust company within or without the state et cetera, pursuant to which on November 13, 1956, the State Board of Administration adopted the following resolution :

“Resolved that the State Board of Administration of Florida does hereby consent to the employment by the Jacksonville Expressway Authority of any banks or trust companies within or without the State of Florida as its bond trustee, registrar, paying agent and depositary, pursuant to Paragraph C, of Section 5 of Chapter 29996, Acts of the Florida Legislature of 1955, and as authorized by said Paragraph C, of Section 5 of the Jacksonville Expressway Authority Law.”

From this it would seem clear that Sections 344.26 and 344.261 vest no control over appellee by the State Board of Administration for the reason that said acts were superseded by Paragraph C of Section 5, Chapter 29996, Acts of 1955, pursuant to which the State Board of Administration has consented that appellee may employ any bank or trust company to perform all fiscal functions relating to the bond issue in question.

Other questions proffered have been considered but found to be without merit. The judgment of the Circuit Court of Duval County must be, and is, hereby

Affirmed.

ROBERTS, DREW and THORNAL, JJ., concur.


author: THORNAL, Justice.

text:
    Blanch TEEL, Madison J. Teel, Jr., and Crystal Dianne Teel, Petitioners, v. NOLEN BROWN MOTORS, Inc., Ophelia Chester Teel and the Florida Industrial Commission, Respondents.
    Supreme Court of Florida, Division A.
    March 29, 1957.

      Cosgrove & Rose, Miami, for petitioners.
    John Goodman, Miami, for employer-carrier.
    Verne L. Freeland, Miami, for Ophelia Chester Teel.
    Rodney Durrance, Tallahassee, for Florida Industrial Commission.
   THORNAL, Justice.

Petitioners by petition for certiorari seek review of an order of the Florida Industrial Commission in a Workmen’s Compensation matter.

The point for determination is the correctness of the legal conclusion of the Industrial Commission as to the lawful widow of a deceased employee.

It is admitted that Madison J. Teel came to his death as the result of an accident arising out of and in the course of his employment by Nolen Brown Motors, Inc. On August 23, 1954, the deputy commissioner made an award in favor of Blanch Teel and two minor children, as the widow and surviving children of the deceased employee. Some months later Ophelia Chester Teel petitioned for a modification of the order claiming that she was the lawful widow of the deceased by virtue of a prior undissolved marriage.

The deputy commissioner took testimony and arrived at the conclusion that the original order should be modified. He found that Ophelia, the first wife, was the lawful widow of the deceased. However, under the authority granted by Section 440.16(2) (c), Florida Statutes, F.S. A., he exercised an allowable discretion by providing that the entire amount of compensation should be paid to the two dependent minors (the children of Blanch and Madison) inasmuch as they were actual dependents of the deceased. He found that Ophelia, the first wife, was not dependent. Out of this situation he justified the exercise of his discretion accordingly. The sum of the testimony of the two hearings was that Blanch and Madison were married in Georgia on May 8, 1950. They lived together in Georgia and in Dade County, Florida. Ophelia produced a marriage license showing that she and Madison had been married in Georgia on December 17, 1938; that they had moved to Ft. Pierce, Florida, where they lived together until about 1948. At this time Madison left Ophelia for a period of about eleven months and went to Georgia. He returned to Ft. Pierce, lived with her for about a month, decided that “marriage was not for him” and departed. Ophelia saw him periodically after his departure. She testified that he left through no fault of hers, that she had never instituted divorce proceedings and had never been served with divorce papers. On this record the deputy and later the full Commission determined that Ophelia, the first wife, had overcome the presumption of validity of the second marriage and entered the order under assault. Review of this order is here sought.

Blanch Teel, the second wife, contends that the uncorroborated testimony of Ophelia, the first wife, was insufficient to overcome the presumption of the validity of the second marriage. Ophelia, the first wife, contends that the showing which she made was adequate to establish her as the lawful widow.

We note at the outset that neither of the alleged widows contests the correctness of the ultimate award which directed payment of total compensation to the two minors. Ophelia, the first wife, has filed no cross-petition seeking review of that order. Blanch, the second wife, seeks merely a review of the order with reference to her widowhood.

A solution to our problem merely requires the application of certain well-established rules heretofore announced by our prior decisions. A presumption exists in favor of the validity of the last marriage. We have held that this is one of the strongest presumptions known to the law. The burden of rebutting it rests upon the party attacking the legality of the last marriage. While the alleged first wife is not required to eliminate every re•mote possibility that a divorce might have been secured by her husband, it is necessary that she tender evidence which when weighed- -collectively establishes the -absence of a reasonable probability that her husband actually secured the divorce.

• Conceivably there may be situations where the courts would necessarily have to rely on the uncorroborated testimony of the one attacking the second marriage. However, in this day of well-kept public records covering vital statistics, such as, births, marriages and divorces,- we feel that to the extent possible the public records available should be exhausted in an effort to establish the fact of divorce or the absence of a divorce as the case may be. In this case, for example, we judicially know that the State Bureau of Vital Statistics is the custodian of records that reflect the granting of divorces in every county in Florida. A similar agency exists in the State of Georgia, where the deceased employee in the instant case evidently resided for a considerable period of time. In order to eliminate the doubt as to the presence or lack of a ' divorce, and in order to discharge the burden placed upon her, we think the first wife should have exhausted a search of these public records. While her attorney testified that an examination of the records in Dade County reflected no divorce, the fact remains that the deceased could have obtained a divorce in any one of a number of Florida counties-as well as in the State of Georgia. We, therefore, conclude that the deputy and the full Commission misconceived the legal effect of the uncontro-verted testimony. This is so for the reason that the testimony was legally insufficient to overcome the presumption in favor of the validity of the second marriage. See Roberts v. Roberts, 124 Fla. 116, 167 So. 808; J. J. Cater Furniture Co. v. Banks, 152 Fla. 377, 11 So.2d 776; Hillyer & Lovan v. Florida Industrial Commission, 155 Fla. 144, 19 So.2d 838; Johnson v. Johnson, Fla.1951, 51 So.2d 421.

The prayer of the petition is granted and that portion of the order under review which determined that the first wife was the lawful widow of the deceased employee is hereby quashed and as to that aspect of the matter the cause is remanded to the deputy commissioner for further proceedings consistent herewith.

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


author: O’CONNELL, Justice. CROSBY, Associate Justice ROBERTS, Justice

text:
    STATE of Florida, Appellant, v. Reubin J. CLEIN, Appellee.
    Supreme Court of Florida, Special Division B.
    March 27, 1957.

      Richard W. Ervin, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., and John D. Marsh, County Sol., Miami, for appellant.
    Robert R. Taylor, Wallace N. Maer and Edward L. Lustgarten, Miami, for ap-pellee.
   O’CONNELL, Justice.

Reubin J. Clein, appellee here and defendant below, was informed against by the County Solicitor of Dade County for an alleged violation of F.S. § 847.01, F.S.A. Defendant filed a motion to quash the indictment. From an order granting defendant’s motion to quash, the State appeals under authority of F.S. § 924.07, F.S.A.

The information, leaving out the formal parts thereof, alleged that the defendant:

(Part I) “did then and there print, publish and distribute a certain printed and written paper containing obscene written de-criptions, of an act of unnatural sexual perversion between a male and a female person, manifestly tending to the corruption of the morals of youths in the words and figures as hereinafter more fully set out in haec verba, to-wit:
(Part II) “ ‘This Happened In Miami Beach!’
“ 'Her head was - - - - In His lap’
(Picture) (Picture)
“ ‘White Girl, Negro Man,
Face Morals Rap
“ ‘The Moving Finger writes — for all interested in Segregation to see. * * *
“ ‘This happened very early the other morning in Miami Beach. Address, south side of 12th St., between Alton Rd. and Lenox Ave.
“ ‘Police Car 154 noticed a Cadillac auto parked there, with motor running.
“ ‘Officer Everett Walshon saw the Negro first. He was sitting up asleep, head lolling back on the top of the seat. Then the officer looked down, he saw the white girl. She was asleep, too — her head in the Negro’s lap. The officer says the Negro was “exposed”.
“ ‘The two were questioned separately. The Negro did not deny participating in an unnatural act. The evidence of it was irrefutable. The girl —who told the police she was a Jackson Memorial Hospital nurse and her name was Mary Connolly Premo — said she didn’t remember what she had done. She only knew she had been “drinking with Jimmy all that day” at an upper Miami Beach swank Bar * * *.’ ”

For our convenience we have divided the information into two parts and labelled them Part I and Part II. Part I was typewritten on the usual form of information. Part II was a copy of a portion of a publication entitled “Miami Life”, dated Saturday, April 30, 1955 and under the title thereof carried the words “Reubin J. Clein, Editor”.

The motion to quash filed by defendant listed five grounds. They are that: (1) the information failed to charge a crime; (2)the information charges one date and the publication shows another; (3) the article is not such that it would manifestly tend to the corrupting of the morals of youth; (4) the article is nothing more or less than a true report of a police case and does not contravene the statute involved; and (5) the article is not obscene as defined by the laws of the State of Florida.

The only question involved on this appeal is whether the trial court committed error in granting the motion to quash. We have concluded that he did.

Sec. 847.01, F.S.A., in effect makes it unlawful, among other things, for any person to print, publish or distribute any printed paper containing obscene language or descriptions manifestly tending to the corruption of the morals of youth.

The defendant in his brief agrees that by his motion to quash he admits all allegation made in the information. His position is that, admitting all alleged therein, the information charges no crime under the statute.

The defendant contends that no crime is charged because the article, if obscene, is not the kind of obscenity which would arouse sexual passions in youth, but rather, if it would do anything, it would arouse disgust. He reasons that the statute only intended to make unlawful obscenity which would arouse sexual passions in youth, not that which would repel.

As we understand the general rule in the United States a court may grant a motion to quash an information or indictment charging obscenity only when the court determines that a verdict that the matter was obscene would have to be set aside as against the evidence and reason. Unless it is clear that such a verdict would have to be set aside, the question of obscenity is a question for the determination of a jury. Certainly where reasonable men might differ as to the question of obscenity, the question is one for the jury. United States v. Bennett, C.C.S.D.N.Y.1879, 24 Fed.Cas. p. 1093, No. 14,571; Commonwealth v. Isenstadt, 1945, 318 Mass. 543, 62 N.E.2d 840; Hallmark Productions, Inc. v. Mosely, 8 Cir., 1951, 190 F.2d 904; People v. Seltzer, 1924, 122 Misc. 329, 203 N.Y. S. 809; Davidson v. State, 1923, 19 Ala. App. 77, 95 So. 54; Commonwealth v. New, 1940, 142 Pa.Super. 358, 16 A.2d 437; State v. Weitershausen, 1951, 11 N.J.Super. 487, 78 A.2d 595; People v. Wepplo, 1947, 78 Cal.App.2d Supp. 959, 178 P.2d 853; King v. Commonwealth, 1950, 313 Ky. 741, 233 S.W.2d 522. We feel that the same rule must apply in the determination of whether such matter would manifestly tend to corrupt the morals of youth.

The information here charged the offense substantially in the language of the statute and this is sufficient, certainly as to form. State v. Pound, Fla.1950, 49 So.2d 521.

While here let us also dispose of that ground in the motion to quash which charges the information bad because it alleges the commission of the alleged crime on April 29, 1955, while the newspaper article shows the date April 30, 1955. F.S. § 906.25, F.S.A. provides that no information shall be quashed except for the reasons expressed therein. This variance in dates is not one of those grounds. But this section must be construed with F.S. Chap. 909, F.S.A. Nevertheless, this variance in dates is one easily explained by the fact that newspapers are frequently published and circulated prior to the date thereon, and the date thereon is not conclusive. And we have held that one date may be alleged and another proved, providing the proof shows the crime committed before the information was filed and within the time of the Statute of Limitations. Horton v. Mayo, 1943, 153 Fla. 611, 15 So.2d 327.

We must assume therefore that the motion to quash was not granted for formal defects, but was granted because the trial court concluded that the information, on its face, did not charge a crime under the statute.

To have arrived at this conclusion the trial court must have found that the article was not obscene, or if obscene was not obscenity which would tend to corrupt the morals of youth.

As we read the statute involved here there are three essential elements necessary to be charged and proved. First is the printing, publishing, and distributing of the matter involved. This element is admitted by defendant in his motion to quash. Second is that the matter be obscene. Third, the obscene matter must be such as manifestly tends to corrupt the morals of youth.

This of necessity brings us to determine whether it can be said as a matter of law that the article was not obscene. To do this we-are required to define the word obscene.

In Webster’s New International Dictionary, 2nd Edition, p. 1681, we find the word defined as:

“1. Offensive to tastefoul; loathsome ; disgusting.
“2. a Offensive to chastity of mind or to modesty; expressing or presenting to the mind or view something that delicacy, purity and decency forbid to be exposed; lewd, indecent; as obscene language, dances, images, b.
* * *
«2 H* * * ”
The Century Dictionary, Vol. IV, p. 4062, defines the word as:
* * *
“2. Offensive to the senses; repulsive; disgusting; foul; filthy; * *.
“3. Offensive to modesty and decency; impure; unchaste; indecent; lewd; as, obscene actions or language; obscene pictures. * * *
“Obscene publication, in law, any impure or indecent publication tending to corrupt the mind and to subvert respect for decency and morality. Syn. 3, immodest, ribald, gross.”

In State v. MacSales Co., Mo.App.1954, 263 S.W.2d. 860, 863 the court said:

“ * * * We have defined obscenity as ‘such indecency as is calculated to promote the violation of the law and the general corruption of morals * * * and include what is foul and indecent, as well as immodest, or calculated to excite impure desires.’ * # í¡í »

The Supreme Court of Missouri in State v. Becker, 1954, 364 Mo. 1079, 272 S.W.2d 283 followed the definition last cited.

In United States v. Two Obscene Books, D.C.N.D.S.D.1951, 99 F.Supp. 760, 762 the court said:

“Our circuit has approved the simple standard that obscenity has ‘the meaning of that which is offensive to chastity and modesty. * * * ’.”

In King v. Commonwealth, 233 S.W.2d at page 523, supra, the court said:

“ ‘ * * * The word obscenity cannot be said to be a technical term of the law and is not susceptible of exact definition in its judicial uses, although it has been defined in a general sense as meaning offensive to morality or chastity, indecent, or nasty. * * * ’ ”

In Davidson v. State, supra [19 Ala.App. 77, 95 So. 55], the court adopted the definition given in 3 Bouv. Law Diet., Rawle’s Third Revision, p. 2396, which defines the word as “ ‘Something which is offensive to chastity; that which is offensive to chastity and modesty’.”

In Hallmark Productions, Inc., v. Mosley, supra, 190 F.2d at page 910, the court said:

“ * * * one of the tests often used is whether it shocks the ordinary and common sense of men as an indecency. * * * ”

Measured by the above definitions we are convinced that it cannot be said as a matter of law that the article is not obscene. Certainly the article is “offensive to chastity of mind or to modesty”. The descriptions in the article create a picture by words which if presented in a photograph or drawing would clearly be obscene. In any event we must conclude that we could not say that the descriptions are so clearly not obscene that a jury verdict finding them to be obscene would have to be set aside as against evidence and reason. It is also our opinion that reasonable men might well differ as to whether the descriptions were obscene. In such case the question of obscenity is for the jury to decide.

Many of the reported cases dealing with the question of obscenity involve statutes wherein no test of obscenity is given. In such cases the generally accepted rule is that matter is obscene if it would tend to deprave and corrupt the morals of those whose minds are open to such influences and into whose hands such matter might fall by suggesting or inciting lewd or lascivious thoughts or desires. United States v. Bennett, supra, and other cases cited in the preceding paragraphs.

But as we construe the statute before us our legislature laid down the test of the obscenity prohibited when it wrote into the statute the words “ * * * manifestly tending to the corruption of the morals of youth. * * * ”

As we understand the word morals it means the code of conduct adopted and used by a particular people at a particular time. Such code expresses in thought and action the consensus of opinion of a people as to what is right and wrong, what is and is not acceptable in the conduct of persons in that community at that time. This code of conduct is formulated and taught to a people by its churches, its schools, to children by parents, and is influenced by the actions and conduct of friends, neighbors and associates. Parts of such code or standard are also frequently expressed by the people, through their elected representatives, in the enactment of statutes and ordinances. Such code of conduct determines and is morals. It must and does encompass more than sexual conduct. It relates as well to common decency, cleanliness of mind and body, honesty, truthfulness, and proper respect for established ideals and institutions, among other things.

We therefore must conclude that morals, as the word is used in the statute before us, is used in its broad sense and relates to more than sexual matters.

We therefore also conclude that in considering whether the information charged a crime against the defendant the word obscene as used in the statute is not limited to that which would arouse sexual passions or corrupt the sex conduct of youth, but includes matter which would corrupt the morals of youth, as we have defined the word morals.

We must then proceed to the last element of the offense charged, i. e. whether the article, if obscene, would manifestly tend to corrupt the morals of youth.

The defendant contends that there are two kinds of obscenity. One being that which is repulsive, foul, filthy, loathsome, dirty, or smutty, but which has no reference to sex or morals. The second being that which is offensive to chastity of mind or to modesty; lewd, impure, unchaste. He then contends that obscenity of the first kind cannot under any circumstances manifestly tend to the corruption of the morals of youth. In other words, he contends that the only obscenity prohibited by the statute is that which would arouse sexual passions in a youth.

While we might agree with defendant that there is obscenity which repels and that which incites the passions, we cannot agree with him that obscenity of the first kind could not affect the morals of youth. Nor are we of the view that the legislature in enacting the statute intended to limit the scope thereof only to obscenity which would arouse sexual passions in a youth. To do so in our opinion would be to construe the word morals as pertaining only to sexual conduct. As above stated, we construe the word in ordinary usage to relate to more than sex conduct.

Defendant ends his argument with the proposition that the article in question would not arouse the passions of youth, and that if it would do anything it would arouse disgust in a young person, or any normal human being.

A similar contention was made by the defendant and rejected by the court in Besig v. U. S., 9 Cir., 1953, 208 F.2d 142. In that case the defendant there urged that the opinion in Burstein v. U. S., 9 Cir., 1949, 178 F.2d 665 was self-contradictory in that the court defined obscene matter as that which “is offensive to the common sense of decency and modesty of the community”, and later in the same opinion adopted the test of obscenity almost identical to the one set forth above in this opinion as being the generally accepted test of obscenity. The court said in 208 F.2d on page 146:

“ * * * Appellant thinks our opinion is ‘unclear as to whether the test of obscenity is that it repels or that it seduces ‘
“We observe no contradiction in any of these expressions. They aptly describe the quality of language which the word ‘obscene’ is meant to suggest. ■Of course, language can be so nasty as to repel and of course to seduce as well. Appellant’s argument tempts us to quote Pope’s quatrain about the Monster Vice which, when too prevalent, is embraced.”

The quatrain referred to was from the poem “Essay on Man” written by. Alexander Pope, English poet. It reads:

“Vice is a Monster of so frightful mien as to be hated needs but to be seen. Yet seen too oft, familar with her face, We first endure, then pity, then embrace.”

We believe the poet showed a sound insight into human nature in writing the above words.

While familiarity is said to breed contempt, we have no doubt that familiarity with obscenity will lessen aversion to it and make it more acceptable. To the extent that obscenity becomes more acceptable morals are lessened and corrupted.

The case of Commonwealth v. Isentadt, supra, is closely related to the case before us here. There the defendant was charged under and found guilty of violation of a statute making it unlawful to sell, possess for purposes of sale, exhibition or circulation material which is obscene, indecent or impure, or which manifestly tends to corrupt the morals of youth. The statute involved in that case was held by that court to be breached either if the novel in question there was obscene, indecent or impure, or if it manifestly tended to corrupt the morals of youth.

That court followed the general rule in saying that a book was obscene, indecent or impure under the statute if it had a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires. But that court also said, 62 N.E.2d at page 844:

“ * * * It also violates the statute if it ‘manifestly tends to corrupt the morals of youth.’ * * * ”

And further said, on page 848:

“ * * * At any rate, we think that almost any novel that is obscene, indecent or impure in the general sense also ‘manifestly tends to corrupt the morals of youth,’ if it is likely to fall into the hands of youth. * * * ”

In the Florida statute under which the defendant was charged it is true that the test of whether the matter is unlawful is that it must be obscenity “ * * * manifestly tending to the corruption of the morals of youth.” While in the statute involved in Commonwealth v. Isenstadt, supra, the matter would be in violation of the statute either if obscene, indecent or impure, or if it manifestly tended to corrupt the morals of youth.

We do not construe this difference in our statute to make it narrower in its scope, but on the contrary it would appear to us that obscenity which would not affect the morals of the average normal person, could nevertheless affect the morals of youth, with its generally recognized lack of experience, its venturesome spirit, its spongelike mind, and its willingness to experiment with something new.

We are of the opinion that our legislature intended to measure obscenity by its effects on the morals .of youth and thereby to give youth and its morals additional, not less, protection, than would have been given under a statute merely declaring against obscenity.

The court in Commonwealth v. Isenstadt, supra, is in accord with our view for it said in 62 N.E.2d on page 848:

« * * * Yet it cannot be supposed that the Legislature intended to give youth less protection than that given to the community as a whole by the general proscription of that which is 'obscene, indecent or impure.’ Rather it would seem that something in the nature of additional protection of youth was intended by proscribing anything that manifestly tends to corrupt the morals of youth, even though it may not be obscene, indecent, or impure in the more general sense. * * * ”

We must conclude that it cannot be said as a matter of law that the article in question would so clearly not tend to corrupt the morals of youth as to require setting aside a verdict of a jury finding that it did tend to do so. Reasonable men would, in our opinion, differ as to whether it would or would not do so. It therefore was a jury question.

There is good reason for requiring the question of obscenity and effect on morals to be submitted to a jury for it is the people of a community who have the right to establish their standard of morals and it should be the people who apply the standard to specific conduct and who determine whether such conduct is offensive and harmful or not. This can best be done through a jury.

Judge Learned Hand expressed our view well in United States v. Kennerley, D. C. S.D.N.Y.1913, 209 F. 119, 121 when he said:

“ * * * If there be no abstract definition, such as I have suggested, should not the word ‘obscene’ be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now? If letters must, like other kinds of conduct, be subject to the social sense of what is right, it would seem that a jury should in each case establish the standard much as they do in cases of negligence. To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy.
“Nor is it an objection, I think, that such an interpretation gives to the words of the statute a varying meaning from time to time. Such words as these do not embalm the precise morals of an age or place; while they presuppose that some things will always be shocking to the public taste, the vague subject-matter is left to the gradual development of general notions about what is decent. * * * ”

The defendant in his brief has submitted a number of newspaper clippings, advertisements, pictures, and other printed matter taken from various publications on sale on news stands in Miami, Fla. These matters are not a part of the record and therefore not properly before us. But if they were, the fact that other publications which are in violation of the statute are published, printed or distributed in the community does not constitute excuse for defendant’s violation of the statute, if he has violated it. Nor is comparison with other publications which may be obscene a test for obscenity as to the article complained against. State v. Weitershausen, supra.

We do not hold by this opinion that the article in question was obscene or that it manifestly tends to corrupt the morals of youth. We carefully refrain from doing so for if we did we would be going beyond our province which is to declare the law. If we went further we would not only be invading the province of the jury but would be imposing upon the people by judicial fiat our view of what the morals of the community should be. This is a matter for the people to decide for themselves.

We do hold that it cannot be said as a matter of law that the article was not obscene and would not tend to corrupt the morals of youth and this is the extent to which we are allowed to go under our system of jurisprudence in cases such as this: We are of the opinion that both the defendant and the state are entitled to have the people, through a jury, determine the factual question of whether the article is obscene and whether it is such as would manifestly tend to corrupt the morals of youth if it fell into their hands.

The order granting the motion to quash is reversed and the cause remanded for further proceedings in accordance with law.

TERRELL, C. J., concurs.

ROBERTS, J., and CROSBY, Associate Justice, concur specially.

CROSBY, Associate Justice

(concurring specially).

I concur in the opinion and the conclusion so well stated by Mr. Justice O’CONNELL. An indictment or information charging the printing, publication and distribution of material of the kind here involved presents, in my judgment, a question that is peculiarly within the province of a jury. This court would not be justified in assuming either that the morals of youth exposed to such a publication are so firmly elevated as to be immune to any possible adverse effect from it or, on the other hand, so sophisticated as to be beyond the possibility of further harm.

For those who might regard this decision as a license to inaugurate a “witch hunt,” it should be emphasized that in the trial of such a charge the burden remains upon the state at all times to prove every essential allegation of the information beyond and to the exclusion of every reasonable doubt.1

TERRELL, C. J., concurs.

ROBERTS, Justice

(concurring specially) .

I concur in the opinion insofar as it disposes of the questions presented and agree to the reversal, but without prejudice to the right of the appellee-defendant if he so desires to attack the constitutionality vel non of the statute under which he is prosecuted. Since this appeal was perfected here, the Supreme Court of the United States, on February 25, 1957, in the case of Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412, voided a Michigan statute almost identical to the one here involved as being in violation of the Constitution- of the United States. It has long been the policy of this court not to pass on the constitutionality of a statute where such was not presented to the court below. I agree to the reversal for the further reason that such will provide the appellee-defendant an opportunity to raise such question in the lower* court if he is so advised.


author: PER CURIAM.

text:
    Eugene L. EISINGER, Jr., and Ethel P. Eisinger, his Wife, Appellants, v. M. C. TIDWELL and Adlou Tidwell, his Wife, Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    Rehearing Denied April 12, 1957.
   PER CURIAM.

Affirmed.


text:
    Lillian Miller O’SHEA, Appellant, v. Harry J. O’SHEA, Appellee.
    Supreme Court of Florida, Special Division A.
    Feb. 27, 1957.
    Rehearing Denied April 12, 1957.
   PER CURIAM.

Affirmed.


text:
    FISHER v. HOFFMAN.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    CORNELL v. BRONSON.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    VAUGHN v. SMITH.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    GESSLER v. GESSLER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    McNAIR v. McNAIR.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ESTATE of RUSSELL.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BERNSTEIN v. OLIN’S AIRPORT U-DRIVE-IT, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    HERBST v. BOARDMAN.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    DAVIS v. V. J. WESSON CONSTRUCTION CO.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SMITH v. LA ROCHE (two cases).
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    THROWER v. ZELLWOOD FRUIT DISTRIBUTORS, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    DELCHER BROS. STORAGE CO. v. CARTER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    OLIVER v. BROWN.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    John Thomas ANDERSON v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    LANIER v. BROCOLLI.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Jimmy FAIRCLOTH v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    NORRIS v. ST. JOE PAPER CO.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    COWAN v. COLLINS, as Governor, et al.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ROBERTS v. AUXILIARY FLOTILLA 8, DIVISION I, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Vernon SLATER v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Clarence MARSHALL v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    STEWART v. ANDY’S TRUCK SERVICE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Margaret GORFOTH v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    FIDELITY & CASUALTY CO. v. COAST CITIES COACHES.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    RAPAPORT v. SNAWERDT & ZOKVIC.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without ^opinion.


text:
    Willie Lee HARDEN v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SHOTKIN v. CITY OF MIAMI BEACH.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    GIFFEN INDUSTRIES v. HUDSON.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    MAY v. CRAMER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BROWARNIK v. CORAL REEF HOTEL, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Earlie OWENS v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    DAVIS ISLAND, Inc. v. CLARKE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    AERIORA v. ULTRAMER INTERNATIONAL CORPORATION.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Joe BRYANT v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    MASLOW v. MASLOW.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BRINKLEY v. PRICE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    WEST v. MILLER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    KRENKEL v. ULMAN IAGER CO.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    CARNEY v. PETERS.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    KUHN v. KUHN.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SMITH v. SMITH.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    FLOYD v. HANSON.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    TAMPA TRANSIT LINES v. WHITE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SMITH v. CARTER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    HUNT v. CARTER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BUSHELL v. MICKENS.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BOBE v. SUTTON.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    GURNEY v. SCHWARTZ.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    LABRUZZO v. ATLANTIC DREDGING & CONSTRUCTION CO.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ALLEN v. GRAVES.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SILVERMAN v. THOMAS.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    HEATH v. JENSEN.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SALINGER v. SALINGER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    DUGGAN v. HAYS (two cases).
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    STATE ex rel. IESLIN v. RUSSO.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    PAN AMERICAN SURETY CO. v. STATE (four cases).
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    CAMERON v. MITTUCH.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    CORAL GABLES MOTEL, Inc. v. NIXON.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    DADE COUNTY v. DAVIS.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SALINAS v. CITY OF ST. PETERSBURG.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    STEVENS v. WOFFORD.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    W. F. MILLS v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    MacGREGOR v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    JACOBS v. LANE AND CARTER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    PORTER v. LANE AND CARTER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BOEHM v. FRANCO.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BICKERTON v. BICKERTON.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    WALKER v. RODRIGUEZ.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    LAW v. DAY.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    STEINBERG v. STEINBERG.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    STATE ROAD DEPARTMENT v. SIMMONS.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ASPDEN. v. ASPDEN.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Crawford PRIDGEON v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    MULLER v. BRYANT.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    MERCI-HILL CORPORATION v. KAMMERMAN.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    VIC’S BAR & RESTAURANT v. KIRSCHENBAUM.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Sidney MALONE v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Carlton KELLY v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ROGERS v. WILLIAMSON
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    PARKER v. DIAMOND CAB OWNERS ASSOCIATION.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    WILDE v. PERRIAU.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ESTATE of BARBER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    PORTER v. PORTER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    WIDLAN v. WILLIAMS.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Buck CARLISLE v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Clarence James CARSON v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    JONES v. JONES.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    RAILWAY EXPRESS AGENCY v. HOAGLAND.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ZIMMERMAN v. BILLAUER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    John HARVEY v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    MILLS v. WILLIS.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    CRANDALL v. HUNTER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    Lulu REDDICK v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    John Leonard SALES v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    HOLNESS v. HOLNESS.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    LEONARD BROS. TRANSFER & STORAGE and Fidelity & Casualty Co. v. UNDERWRITERS SALVAGE CO.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ATLANTIC REFINING CO. v. ROLFE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    KUDELL v. KUDELL.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    MARCOTTE v. PAPPAS.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    HARDMAN v. The MACKLE CO.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    MORGAN v. EASON.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ALLEN v. WICK.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BREIVOGEL v. COLLINS GARAGE, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    HOTEL EMPLOYEES UNION v. INTERNATIONAL CO., Inc.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    KRUSIEC v. CITY OF CORAL GABLES.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SPERA v. SPERA.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    EVANS v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    EASTERLING v. GUTHRIE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    GLASSER v. CARRIER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    WORLD WIDE LIQUORS v. WILLIAMSON.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    ALLEN v. SMITH.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    FULLER v. FLORIDA STATE TURNPIKE AUTHORITY.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    GRANT v. FLORIDA STATE TURNPIKE AUTHORITY.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    CITY OF FORT LAUDERDALE v. OCEAN VILLA APARTMENTS, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SYLK v. CIRCLE BROADCASTING CORPORATION.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    PALM BEACH ROYAL v. BRAND.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    CHIHAUHAU CLUB OF FLORIDA v. SCHWEITZER et al.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    UNITED STATES of AMERICA v. GULF BEACH BANK.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    TROPICAL PAPER & WAX CO. v. CORMIER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    George McLARTY v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    WEAVER v. WEAVER.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    RAY v. RAY.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    SOUTHERLAND v. GOTTESMAN.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    WENK v. WEBB’S CITY, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BILLINGS ENTERPRISES, Inc. v. SHORT.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    BERMAN v. LEITMAN ENTERPRISES.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    GREBS v. FREEMAN.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    HENDRICKSON v. HENDRICKSON.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    JONES v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    HALL v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Dismissed without opinion.


text:
    HALPERN v. HALPERN.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari dismissed without opinion.


text:
    GREATER MIAMI TRAFFIC ASS’N v. FLORIDA RAILROAD AND PUBLIC UTILITIES COMMISSION.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari dismissed without opinion.


text:
    MARSH v. SEACORD & SANKIN.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari dismissed without opinion.


text:
    NELSON v. CIRCUS SUPPLY & HARDWARE, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari dismissed without opinion.


text:
    PAUL v. THE CASEMENTS, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari dismissed without opinion.


text:
    BELFORD TRUCKING CO. v. CARTER.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari dismissed without opinion.


text:
    ORANGE IMPROVEMENT CO. v. MAJINSKI.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    BOARD OF PUBLIC INSTRUCTION v. NOAH.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    J. HILBERT SAPP, Inc. v. THORN et al.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    SKROBICK v. PIONEER GROWERS COOPERATIVE.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    CITY OF MIAMI BEACH v. WEICHELT.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    CITY OF MIAMI BEACH v. GAPINSKI.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    KINNARD v. SANDIDGE.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    SILVERMAN v. SPIEVACK.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion,


text:
    FRITZ v. BECK.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    SOUTHERN LIFE & HEALTH INS. CO. v. RUSSELL.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    WOFFORD v. STEVENS.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    COAST CITIES COACHES v. FELDKAMP.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    LEE v. LEE.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    AIR LINES PILOTS ASSOCIATION v. MORRIS.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    MICKLER v. FLORIDA STATE ROAD DEPARTMENT.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    KENNY v. KENNY.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    WEBER v. FLORIDA STATE BOARD OF OPTOMETRY.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    T. M. REALTY CO. v. AKULIN.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    WATSON v. GALLAGHER.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    LITT v. JARSON.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    WICKERSHAM v. EASTERN AIR LINES, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    WHITMORE v. PAN AMERICAN WORLD AIRWAYS, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    JOHNSON v. PAN AMERICAN BANK OF MIAMI.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    MATHEWS v. CARL’S MARKETS, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    OLFORD v. SANFORD.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    SEYMOUR v. CHANDLER.
    Supreme Court of Florida
    June Term 1956.
   Certiorari denied without opinion.


text:
    BECKMAN v. CONLEY.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    DAVIS v. ELBERTA CRATE & BOX CO.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    NEIMY v. MERRITT.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion,


text:
    AHALMAN v. COTTON.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion,


text:
    STONE v. AUSTIN.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    GAY v. MARTIN.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    PURE FOODS, Inc. v. SMITH.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion,


text:
    BARTH v. Nol KEMPER.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    CITY OF KEY WEST v. TORRES.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    LOHBILLER v. MASSACHUSETTS INSTITUTE OF TECHNOLOGY.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    BATEMAN v. CREIGHTON.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    WILDER v. WHITCUP.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    EGLAND v. EGLAND.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    YAUCH v. OCEAN PIER, Inc.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    MIAMI WINDOW CORPORATION v. SUPERIOR ELECTRICAL INDUSTRIES.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    CAMPBELL v. SETZER.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    CITY OF FORT LAUDERDALE v. THOMAS.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    Donald E. CARPENTER v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    THREADGILL v. SEGAL.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    HOFFMAN v. ST. JOE PAPER CO.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    Alfred GOLDBERG v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    BLOOMBERG v. STATE.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    FOLMAR v. LEAR.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    OLIN’S USED CARS, Inc. v. ANGEL.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    DURRANCE v. FLORIDA INDUSTRIAL COMMISSION.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    CLARK v. CLARK.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    BLACKMAN & HUCKABY ENTERPRISES v. JONES.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    DE MIRZA v. BENN.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    MAX v. POWELL.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    COHEN v. CITY OF MIAMI.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion,


text:
    WARE v. CITY OF MIAMI.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    HARRELL v. MIAMI TRANSIT CO.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


text:
    HAROLD A. GILLIAM CONSTRUCTION CO. v. MORRIS and Florida Industrial Commission.
    Supreme Court of Florida.
    June Term 1956.
   Certiorari denied without opinion.


author: SIMON, Justice.

text:
    232 La. 81
    PLAQUEMINES PARISH SCHOOL BOARD v. LA GRANGE REALTY, Inc. and Miss Irene Shields, and Miss Lareine Hill (Consolidated).
    No. 42880.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    John R. Perez, Jr., Terriberry, Young, Rault & Carroll, Harold J. Zeringer, New Orleans, for defendants-appellants.
    L. H. Perez, Dist. Atty., Rudolph M. McBride, 1st Asst. Dist. Atty., New Orleans, and ex-officio attorneys, for plaintiff-appellee.
   SIMON, Justice.

The Plaquemines Parish School Board’ instituted two suits in the Twenty-Fifth Judicial District Court, Parish of Plaque-mines, to expropriate two squares of ground for public school purposes. Suit No. 3497 of the docket of said court was brought against La Grange Realty, Inc. and Miss Irene Shields, owners of Square No. 14, containing 1.859 acres; and suit No. 3498-was instituted against Miss Lareine Hill, owner of Square No. 13, containing 2.052' acres, both squares located in the Townsite-of Belle Chasse of said Parish.

Plaintiff alleged that a fair and reasonable price for square 14 is the sum of $651, and for square 13, the sum of $719.

Answering these suits, defendants denied’ plaintiff’s need for the property sought to be expropriated; nevertheless, at the beginning of the trial, it was stipulated that the said property was needed for school purposes and that plaintiff had a right to-expropriate same, and that the only question for adjudication was the price or value of the subject property. The defendants-claimed that each of said squares was. worth at least $5,000.

Both suits were consolidated for trial in the lower court, but two separate judgments were rendered. In each suit the lower court rendered judgment adjudging plaintiff’s ownership of the subject property by virtue of the expropriation proceedings, with reservation to the respective defendants of all oil, gas and other mineral rights in their respective properties, and awarding to each defendant the sum of $1,000. Defendants have appealed.

In its brief plaintiff questions our appellate jurisdiction in this matter, contending that the amount in dispute is less than the sum of $2,000.

In determining whether this court has appellate jurisdiction because of the amount in dispute, or because of the value of the thing in dispute, or because of the subject matter of the suit, in a given case, the record must show affirmatively that the court has appellate jurisdiction; otherwise the appeal must be dismissed or transferred to the proper court of appeal. State v. Cook, 197 La. 1027, 3 So.2d 114, 116; City of New Orleans v. Langenstein, 227 La. 770, 80 So.2d 402.

Further, in determining the question of jurisdiction this court is not bound to accept the allegations of the petition or the averments of the answer but will inquire into the record to ascertain the real amount in dispute. Allegations of jurisdictional facts are not the exclusive test of jurisdiction. Wilkins v. Gantt, 32 La.Ann. 929; Lea v. Orleans, 46 La.Ann. 1444, 16 So. 456; Spearing v. Whitney Bank, 129 La. 607, 56 So. 548; Wagner v. New Orleans Ry. & Light Co., 151 La. 400, 91 So. 817.

See also the case of Homer Harris v. Barron, 231 La. 1076, 93 So.2d 663.

Though we conclude that this record does not affirmatively show the value in dispute to be in excess of $2,000 so as to vest appellate jurisdiction in this Court and therefore are constrained to transfer the case to the court of appeal, we do not intend to imply or suggest that the valuation of the property to be fixed by the court of appeal as compensation therefor may not, after due consideration of the merits, exceed the sum of $2,000.

All we conclude herein is that the record as presented to us is barren of any affirmative proof as to the value in dispute as to the property here involved which would authorize us to retain jurisdiction.

As above noted this proceeding involved two separate suits against separate defendants in which there exists no privity of interest. Though the two suits were consolidated in the trial court for purposes of trial, separate judgments were rendered; and on reaching us on appeal through inadvertence one docket number was assigned to both cases. These circumstances therefore compel us to render two separate decrees though appearing under one docket number.

Accordingly, for the reasons assigned, it is ordered that the appeal in the matter of Plaquemines Parish School Board v. La Grange Realty, Inc. and Miss Irene Shields, No. 3497 of the docket of the Twenty-Fifth Judicial Court, Parish of Plaquemines, be transferred to the Court of Appeal, Parish of Orleans, pursuant to the provisions of LSA-R.S. 13:4441 and LSA-R.S. 13:4442, the record to be filed in such court by appellants within 30 days from the date on which this decree shall become final; otherwise the appeal shall stand dismissed. All costs of the appeal to this court shall be paid by appellants; all other costs await final disposition of the cause.

It is further ordered that the appeal in the matter of Plaquemines Parish School Board v. Miss Lareine Hill, No. 3498 of the docket of the Twenty-Fifth Judicial District Court, Parish of Plaquemines, be transferred to the Court of Appeal, Parish of Orleans, pursuant to the provisions of LSA-R.S. 13:4441 and LSA-R.S. 13:4442, the record to be filed in such court by appellants within 30 days from the date on which this decree shall become final; otherwise the appeal shall stand dismissed. All costs of the appeal to this court shall be paid by appellant; all other costs await final disposition of the cause.