text:
    Nathan D. STRINGER, Sr. v. CONSUMERS CREDIT CORPORATION.
    No. 4480.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    France W. Watts, Jr., Franklinton, Gordon Goodbee, Covington, for appellant.
    Benj. W. Miller, Bogalusa, 'Dalton J. Barranger, Covington, for appellee.
   ELLIS, Judge.

The plaintiff, Nathan D. Stringer, Sr., brought this action against the defendant, Consumers Credit Corporation, seeking the appointment of a receiver.

The defendant filed certain exceptions, among which was an exception of no right or cause of action which is re-urged here as it was overruled by the lower court. A plea of estoppel was also filed and upon hearing sustained, and plaintiff’s suit dismissed.

Plaintiff has appealed.

The appellee has filed a motion here to dismiss the appeal and has answered it, praying in the alternative that the judgment be affirmed except insofar as the attorneys fees were fixed in the sum of $300 asking that this amount be increased to the sum of $5,000.

Title 12, Section 755 of the LSA-Revised Statutes governs appeals in such cases. This Section reads:

“Any person who by affidavit appears to be interested, in giving bond in a sum to be fixed by the court, may appeal on the face of the record from any order appointing, or refusing to appoint a receiver, granting, or refusing to grant an injunction as aforesaid. Such an appeal when perfected shall have the effect of suspending the functions of the receiver, except to perform such administrative acts as may be necessary for the preservation of the property. Such appeal must be taken and perfected within ten days from the entry of the order appointing or refusing to appoint a receiver,, or granting or refusing to grant an injunction. Such appeal shall be returnable in ten days from the date of such order, and shall be tried by preference in the appellate court. Any interested party may apply within thirty days after the entry of the order of appointment for a receiver to vacate same on legal or just grounds, and may appeal from an adverse judgment, but such appeal shall not suspend the functions of said receiver in any way. The value of the property confided to the receiver shall determine the jurisdiction of the appellate court.”

The course of this Statute is Act No. 1S9 of 1898, Section 4. With some slight difference in punctuation the original Act reads the same as the Revised Statute except that the original Act reads, “May appeal in the face of the record” while the Revised Statute states, “may appeal in the face of the record.”

The judgment herein was read, rendered and signed in open court on May 3, 1957 and the order of appeal was requested and granted simultaneously. This order of appeal was made returnable on June 10, 1957. The bond was filed May 7, 1957 and the appeal lodged here May 27, 1957.

The appellee, defendant below, maintains the appeal should have been perfected and lodged in this Court within the ten day period prescribed by the quoted Statute. In support of this contention the case of Naef v. Miller-Goll Manufacturing Co., 174 La. 232, 140 So. 32, is cited. In that case there was an appeal from a judgment denying the application of the plaintiff for the appointment of a receiver of the defendant corporation. The judgment was read and signed on May 18, 1931, the order of appeal granted and perfected on May 25, 1931 and the appeal made returnable July 14, 1931. A motion to dismiss the appeal was filed therein based upon Section 4 of Act 159 of 1898. (As hereinabove pointed out, the present Statute, Title 12, Section 755 of the LSA-Revised Statutes, is for all intents and purposes synonymous with the Act of 1898.)

In the Naef case, reliance was made upon the case of Louque v. Hercules Oil Co., Inc., 165 La. 143, 115 So. 416. The Supreme Court quoting from this case concluded the motion to dismiss was founded upon a mandatory provision of the law and should be sustained. The Supreme Court further said:

“In answer to the motion to dismiss the appeal the plaintiff directs the court’s attention to the fact that, in the cited case, the appeal was from an order appointing a receiver, while in this case the situation is reversed, and, therefore, the functions of the corporation are not suspended by the judgment appealed from. It is contended that it was the legislative intent to authorize the summary process only in cases where the judgment suspends the functions of the corporation. It is also contended that the error in fixing the return day is an error of the court, and that litigants will not suffer for errors of the court or its officers, it being beyond their control.”

On rehearing, which reinstated the decree dismissing the appeal, Chief Justice O’Niell reconciled the jurisprudence, stating:

“The purpose in granting a rehearing in this case was to reconcile the decision which we had rendered in the case, and in Louque v. Hercules Oil Co., 165 La. 143, 115 So. 416, with the jurisprudence to the effect that, where the law makes it the duty of the judge to fix the return day of an appeal, within certain limitations, and he makes a mistake in his order fixing the return day, the appeal should not be dismissed on that account, unless it appears that the mistake was induced by or imputable to the appellant or his attorney. It is so provided in article 898 of the Code of Practice (section 11 of Act No. 45 of the Extra Session of 1870), and our reports are full of decisions to that effect. But that rule applies only to cases where the judge is given the authority — and is in fact required — by the provisions of Act No. 106 of 1908, p. 163, to fix the return day in his order granting the appeal, which return day shall be not less than fifteen nor more than sixty days from the date of the order of appeal, except by consent of the parties. That is the general rule, but it does not apply to an appeal from an order appointing or refusing to appoint a receiver to take charge of the affairs of a corporation, because, as we pointed out in Louque v. Hercules Oil Co., an appeal from such an order is governed by section 4 of Act No. 159 of 1898, which declares: ‘Such appeal shall be returnable in ten days from the date of such order, and shall be tried by preference in the appellate court.’ The judge who grants an appeal from an order appointing or refusing to appoint a receiver has no authority whatever to fix the return day. All that the judge has authority to do in such a case is to grant the appeal, on condition that the appellant shall furnish an appeal bond for the amount fixed by the judge; the return day is fixed by the statute itself, which is applicable to all appeals from orders appointing or refusing to appoint a receiver.”

Further, in the Naef case, the Court said:

“The attorneys for the appellant are presumed to have known that their appeal was ‘returnable in ten days,’ no matter what the minute clerk, or the judge himself, might have said of the return day * *

Also in the Naef case, at column 2, Í140 So. at page 33, we find:

“With respect to the return day, the section is mandatory, and it must be enforced as written regardless of our disagreement with the wisdom of the Legislature in applying the rule alike in cases where the judgment appoints or refuses to appoint a receiver. The error in fixing the return day is chargeable to both the appellant and the court. Its correction was not beyond the control of the appellant, who might have had the order conformed to the requirement of the statute, but who inadvertently omitted to do so. For this reason the fixed jurisprudence of this state with respect to errors of the court or its officers which are beyond the control of a litigant cannot be successfully invoked by this appellant.”

The Supreme Court in the Naef case, in support of its ruling, cited both the Louque v. Hercules Oil Co., supra, as well as Kerlin v. Bryceland Lumber Co., 134 La. 463, 64 So. 289.

The Kerlin case stated that Act No. 106 of 1908, now LSA-R.S. 13:4438 which fixed the return day in the order granting an appeal at not less than 15 nor more than 60 days from the date of the order except by consent, does not apply to appeals from orders appointing receivers but that such appeals are governed by Act 159 of 1898, now LSA-R.S. 12:755, which provides that the appeal shall be returnable in ten days. To the same effect is Davies v. Monroe Waterworks & Light Co., 107 La. 145, 31 So. 694.

Crichton v. Webb Press Co., 107 La. 86, 31 So. 648, holds that under Act No. 159 of 1898, now LSA-R.S. 12:755, appeals from judgments appointing or refusing to appoint receivers to corporations must be taken within ten days from the entry of the order and neither the parties to the cause nor the court can alter this requirement. Also see Webb v. Wilhelm Moss Co., 167 La. 430, 119 So. 416.

In the present case the appeal was made returnable too late and the record was filed here too late, and under the fixed jurisprudence the motion to dismiss is well founded.

The appeal is therefore dismissed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Harold CARPENTER, Appellant, v. Louise ST. GERMAIN and her husband, Rialbeau St. Germain, Appellees.
    Supreme Court of Florida.
    Sept. 13, 1957.
    Rehearing Denied Nov. 6, 1957.
    Morehead, Forrest, Gotthardt & Orr, Miami, for appellant.
    Eli Breger, Miami Beach, and Harvey J. St. Jean, Miami, for appellee.
   PER CURIAM.

Affirmed.

See St. Germain v. Carpenter, Fla., 84 So.2d 556.

TERRELL, C. J., HOBSON, DREW and O’CONNELL, JJ., CARROLL, Associate Justice, and WIGGINTON, District Judge, concur.


text:
    Harry E. WESTBURY and Ruth Rodeheaver Thomas, as Executrix of the Estate of Homer A. Rodeheaver, Deceased, Appellants, v. Alvin C. CHACE, Appellee.
    Supreme Court of Florida.
    Sept. 27, 1957.
    Rehearing Denied Nov. 6, 1957.
    H. E. Merryday and Dowda & Millican, Palatka, for appellants.
    E. Coleman Madsen, Jacksonville, Walton & Walton, Palatka, and Bedell & Be-dell, Jacksonville, for appellee.
   PER CURIAM.

This appeal attacks the propriety of a verdict and judgment in favor of plaintiff-appellee, a real estate broker, entered in a suit' filed by him against the defendant-appellants to recover a broker’s commission.

The jury heard conflicting testimony, apparently resolved the conflicts, therein in favor of the plaintiff, and entered a verdict in his favor under instructions from the trial judge not here objected to by the defendants. The evidence adduced by the plaintiff was sufficient to support the verdict in his favor under such instructions. Cf. Pensacola Finance Co. v. Simpson, 1921, 82 Fla. 368, 90 So. 381. Accordingly, the defendants’ contention that they are entitled to a new trial because of the insufficiency of the evidence cannot be sustained.

The defendants have also assigned as error the trial judge’s action in overruling their first defense directed to the sufficiency of the plaintiff’s compláint to state a cause of action. The allegations of the first and second counts were clearly sufficient to state a cause of action. See Parrish v. Tyre, Fla.1952, 59 So.2d 250; Pensacola Finance Co. v. Simpson, supra, 90 So. 381. The third count is not vulnerable to the attack. made upon it by the defendants in their reply brief, see Moore v. Boyd, Fla.1952, 62 So.2d 427, and no argument directed to this count was made in their original brief. Thus, this assignment of error cannot be sustained.

The assignment of error relating to the amount of the verdict has been considered and no reversible error has been found.

For the reasons stated, the judgment appealed from should be and it is hereby

Affirmed.

THOMAS, Acting Chief Justice, and ROBERTS, DREW, THORNAL and O’CONNELL, ]]., concur.


author: THORNAL, Justice.

text:
    WM. E. STRASSER CONSTRUCTION CORPORATION, a Florida corporation, Appellant, v. Robert C. LINN and Alberta Linn, his wife, and Angelina Sammartino, Appellees.
    Supreme Court of Florida.
    Oct. 11, 1957.
    Rehearing Denied Nov. 5, 1957.
    Courshon & Fink, Miami Beach, for appellant.
    Padgett & Teasley, Miami, for appellees.
   THORNAL, Justice.

Appellant Strasser which was plaintiff below seeks reversal of an order dismissing its complaint on the ground of lack of jurisdiction.

We must determine whether the appellees who were the defendants below were subject to substituted service of process under Section 47.16, Florida Statutes.

Appellees Linn owned a lot in Miami. At the time of the transaction here involved the Linns resided in Tokyo, Japan. They executed to appellee Sammartino, a resident of New York, a power of attorney authorizing her to enter into the contract which is the subject of this suit. Through their agent, Mrs. Sammartino, the Linns engaged the services of Strasser to construct a three-unit apartment house on their Dade County lot. Alleging money to be due him as damages resulting from alleged breaches of this construction contract, Strasser sued in the Circuit Court of Dade County. Mrs. Sammartino being in New York and the Linns being in Japan, Strasser undertook to obtain service on the three defendants by service of process on the Secretary of State under Section 47.16 and Section 47.30, Florida Statutes. The defendants appeared specially and by a motion to dismiss contested the jurisdiction of the coui't. The motion was granted and the complaint was dismissed for lack of jurisdiction of the parties. Reversal of this order is now sought.

Appellant contends that the execution of the construction contract under the circumstances alleged constituted engaging in a “business venture” in Florida sufficient to subject appellees to the provisions of Section 47.16, Florida Statutes.

Appellees contend that the contract was an isolated transaction and did not constitute engaging in a “business venture.”

Section 47.16, supra, relates to nonresidents who “operate, conduct, engage in, or carry on a business or business venture, in the state * * The statute further provides in effect that service of process may be obtained upon such non-residents by the service of process on the Secretary of State of Florida “in any action, suit or proceeding against them * * * arising out of any transaction or operation connected with or incidental to such business or business venture * * The cited statute provides a method of substituted service of process in lieu of personal service. It is therefore necessary that one invoking the provisions of the statute carry the burden of presenting a situation that clearly justifies the application of the Act. Statutes of this nature are strictly construed and parties seeking to invoke them are required to bring themselves clearly within the provisions of the Act in order to render the substituted service of process effective against the defendants. Rorick v. Stilwell, 101 Fla. 4, 133 So. 609.

We have also held that each case ot this kind must be resolved on the basis of the facts revealed by the record in the particular case. While certain general principles may be said to prevail the application of these principles will be governed by the factual situation presented by a particular record. Mason v. Mason Products Company, Fla.1953, 67 So.2d 762.

Inasmuch as no testimony was taken and the matter was disposed of on a motion to dismiss precipitated by the special appearance, we must look to the allegations of the amended complaint with supporting exhibits in order to ascertain whether the appellant has met the requirements of the statute with sufficient allegations to reveal that the appellees were engaging in or conducting a business or business venture in Florida when under the circumstances they executed the construction agreement in suit.

Among other things the amended complaint‘alleges that the Linns through their authorized agent “did enter into the aforesaid agreement to erect the aforesaid apartment building to provide income to the defendants, Robert C. Linn and Alberta Linn, his wife, by means of renting the said units to be located in the said apartment building to tenants.” The allegations are further supported by a copy of the power of attorney from the Linns to Mrs. Sammartino which is attached to the amended complaint as an exhibit. By this document the Linns designated Mrs. Sammartino to act as their agent “and to enter into all contracts for the completion of a three (3) unit dwelling on the said property and upon the completion of said dwelling units Mrs. Sammartino is empowered to lease the dwelling units, to acquire furniture and to collect rentals, to use the courts in our name to enforce or to collect damages resulting from any breach of contract made in our behalf, * * From these allegations therefore it appears that the Linns, haying previously acquired a parcel of land in Dade County, entered into a contract with Strasser for the construction of an apartment building which upon completion was to be equipped and rented to tenants to produce an income for the benefit of the property owners. While at first glance the mere execution of the construction contract might appear in and of itself to be lacking in elements of a business venture, a more mature and thorough consideration of the allegations of the complaint suggest that the Linns had invested in a piece of Florida real estate and, by the agreement, contemplated investing further capital in a purely business enterprise. If the building were completed and the owners then proceeded to collect the rents and enjoy the profits of the Florida operation, we believe it could hardly be contended with success that they were not engaging in a business venture in this state. We think it equally clear that by the purchase of the land and the execution of the construction agreement the Linns were initiating the first subtantial steps toward setting themselves up in a business venture in this state. In Restatement of the Law “Judgments” Sec. 22, p. 107, we find the following :

“b. What constitutes doing business. In the case of an individual, as in the case of partnerships or other unincorporated associations (see Sec. 24) and in the case of corporations (see Sec. 30), doing business is doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose •with the intention of thereby initiating a series of such acts.” (Emphasis supplied.)

According to the allegations of the amended complaint with the supporting exhibit the acquisition of the land supplemented by the execution of the construction contract with the intent alleged certainly constituted the doing of several acts for the purpose and with the clear intent of initiating and engaging in a business venture.

This statute was before this Court and was thoroughly construed in State ex rel. Weber v. Register, Fla.1953, 67 So.2d 619. We find no substantial distinction between the case last cited and the case at bar. This is especially so when we consider the rule of the cited case in the light of the definition of “What constitutes doing business” quoted above.

We find it unnecessary to complicate this opinion by delving into the doctrine of relative conveniences or inconveniences as between the contesting parties. Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139; International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. In the instant case the appellees came into Florida, engaged in a “business venture,” executed the contract with a Florida resident and thereby invited the jurisdiction of the Florida courts in the event of ensuing litigation arising out of the venture.

This opinion is obviously no decision on the basic merits of the controversy. We merely here hold that the Circuit Court of Dade County acquired jurisdiction of the parties by the service of process obtained under the statute.

The order of the trial court sustaining the motion to dismiss the complaint filed pursuant to the special appearance is hereby reversed and the cause is remanded for further proceedings consistent herewith.

Reversed and remanded.

THOMAS, Acting Chief Justice, and ROBERTS, DREW and O’CONNELL, JJ., concur.


author: PER CURIAM. TAYLOR, Associate Justice TERRELL, Chief Justice ROBERTS, Justice PER CURIAM. TERRELL, Chief Justice

text:
    F. L. KAESLIN, Appellant, v. Mitchell ADAMS and Martha Adams, his wife, and Mark Wenkstern, Appellees.
    Supreme Court of Florida, En Banc.
    June 26, 1957.
    On Rehearing Oct. 16, 1957.
    William F. Leonard, Fort Lauderdale, for appellant.
    Saunders, Curtis & Ginestra and George H. Gore, Fort Lauderdale, for appellees.
   PER CURIAM.

The judgment of the lower court is reversed with directions to reinstate the non-conforming permit issued by the Broward County Zoning Board of Adjustment. The several reasons for this judgment are set forth in the specially concurring opinions which follow.

It is so ordered.

TERRELL, C. J., ROBERTS, DREW and THORNAL, JJ., and PARKS and TAYLOR, Associate Justices, concur.

THOMAS. J., dissents.

TAYLOR, Associate Justice

(concurring specially).

In March, 1951, F. L. Kaeslin purchased certain property in Broward County that was not zoned. On April 29, 1952, the Board of County Commissioners zoned this property as “Business A” effective June 3', 1952. On May 26, 1953, a zoning regulation was adopted rezoning the property into a “B-l” area, effective June 23, 1953. Trailer parks were not in terms prohibited or included in either of said zones, but proper construction of the resolutions permits trailer parks in “Business A” and prohibits them in “B-l” areas. -

On March 25, 1954, Kaeslin applied to Broward County Zoning Board., pf Adjustment for permission to establish a trailer park on the lands in question. A non-conforming permit was granted in compliance with Kaeslin’s request and he began construction of the trailer park. After substantial construction but before the work was completed Kaeslin was advised by Mr. W. D. Rawls, County Zoning Inspector, that on August 26, 1954, his non-conforming permit had been revoked and that “reasons for this were sufficient based on community protest and legal technicality.”

Pursuant to a suggestion contained in this notice of revocation, Kaeslin made application for rehearing on the order revoking his permit which, on October 28, 1954, was granted. Present at the hearing were Broward County Zoning Board of Adjustment, the County Zoning Inspector and a large delegation of citizens opposing issuance of the permit. The parties were represented by counsel, a complete hearing was conducted on October 28, 1954, and a second non-conforming permit was granted, based upon which Kaeslin resumed construction of his trailer park. On November 26, 1954, complaint in this cause was filed and a temporary restraining order was directed to Kaeslin enjoining him from further construction of a trailer park upon said premises. Other pleadings were filed and on February 25, 1955, final decree was entered making the injunction permanent and directing that the Broward County Board of Adjustment rescind its action of October 28, 1954. This decree is before us for review.

The Circuit Court appears to have based its decision largely, if not entirely, upon a line of cases from other jurisdictions which adopt the view that a board of adjustment may not authorize, under any conditions, a business building in an area zoned for residences because, they hold, to do so would amount to re-zoning the property. Such re-zoning, they say, invades the zoning powers of the agency of government given the legislative power to fix the lines between residential and business areas. The weight of this argument is apparent from the logic of these decisions. See particularly Real Properties, Inc., v. Board of Appeal of City of Boston, 319 Mass. 180, 65 N.E.2d 199, 168 A.L.R. 8, Lee v. Board of Adjustment of City of Rocky Mount, 226 N.C. 107, 37 S.E.2d 128, 168 A.L.R. 1.

On the other hand, there is good authority for the argument that the purpose of a board of adjustment is to relieve specific property from the letter of the zoning law and every variance is, in effect and practical operation, a re-zoning of the property affected. See Annotation 168 A.L.R. 13.

Between these two views this Court has already settled the law of this state. In the case of State ex rel. Landis v. Valz, 117 Fla. 311, 157 So. 651, 654, the Court had before it a case involving a zoning ordinance of the City of Jacksonville in connection with the propriety of granting a permit to construct a dog racing track in a residential area. In considering that section of the ordinance relating to the granting of variances, the Court said:

“Section 17 is a valid provision of the ordinance. It does not, as claimed, invalidate the ordinance by vesting in certain officers the power of legislation to rezone the city. The provision is necessary to give flexibility to the zoning ordinance and prevent it from being arbitrary to the point of unreasonableness. See State ex rel. Taylor v. [City of] Jacksonville, 101 Fla. 1241, 133 So. 114.”

This case clearly authorizes a board of adjustment in proper cases to permit nonconforming uses of property in a residential zone. The error of the Circuit Court was in regarding such action as rezoning and in holding it to be ultra vires the board of adjustment.

Since there was no testimony before the Circuit Court, it was impossible for that Court and is now impossible for us to review the discretion exercised by the board of adjustment.

I have therefore agreed to the above judgment of reversal.

PARKS, Associate Justice, concurs.

TERRELL, Chief Justice

(concurring specially).

As I see it the point in the case is whether or not on the record the chancellor was authorized to overthrow the finding and order of the Broward County Board of Adjustment and substitute his judgment for theirs.

The gist of the court’s decree setting át naught the order and finding of the Board of Adjustment is to the effect that Chapter 27431, Special Acts of 1951, empowers the Board of Adjustment to authorize variances from zoning resolutions as will not be contrary to public interest, when owing to special conditions, a literal enforcement thereof will result in unnecessary hardship, so that the spirit of the zoning resolution shall be observed and substantial justice done. The court further found that the minutes of the Board of Adjustment of March 25, 1954, show no hardship peculiar to appellant. Assuming that the required notice was given, the court can come to no other conclusion than that the action of the Board in rezoning was beyond its power. • Their action was not in the “public interest,” neither was the “spirit of the zoning resolution” observed. The general rule is that variances are to be granted sparingly, only in rare instances and under peculiar and exceptional circumstances.

The hardship depended on at the hearing, October 28, 1954 (second hearing), said the court, was the expenditure by Kaeslin of $6,900 in reliance upon the first permit which was revoked. Since the permit was invalid, said the court, it vested no right or privilege in the one to whom issued. On this reasoning the temporary restraining order was made permanent and Kaeslin was enjoined permanently from further building or operating his trailer park. It was further ordered that Brow-ard County Board of Adjustment meet and rescind their action of October 28, 1954, granting Kaeslin a variance permit.

In support of his assault on the court’s order appellant says that the power of the Board of Adjustment is defined by Section 6, Chapter 27431, as follows:

“To authorize upon appeal in specific cases such variance from the terms of the order or resolution as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the order or resolution will result in unnecessary hardship, and so that the spirit of the order or resolution shall be observed and substantial justice done.”

Appellant further says that the Board of Adjustment proceeded under the law as thus quoted to consider his application for variance permit; that the Board of Adjustment was familiar with the community, the property and the parties and granted the variance permit with knowledge of all these factors; that there is no showing that the public interest will suffer, in view of which and the law as above quoted, the court was without authority to disturb the finding and judgment of the Board of Adjustment.

Appellant further contends that irrespective of notice or lack of notice as to granting the first permit, the Board heard the application of appellant for and granted the first permit; that they are presumed to know the law governing their administrative duties and to act thereon. Under the law appellant applied for his permit; his application was considered and granted, in reliance upon which appellant proceeded to construct his trailer park. If there were errors in notice or otherwise on the part of the Board of Adjustment they should not be charged to appellant.

It is accordingly my view that the Board of Adjustment was authorized to hear and consider appellant’s application for a variance permit; that its judgment bore the stamp of fairness and reasonableness; that there was no showing whatever of abuse of discretion and that in substituting its judgment for that of the Board the court committed error. City of Miami Beach v. Lachman, Fla.1953, 71 So.2d 148; City of Miami Beach v. Wiesen, Fla.1956, 86 So.2d 442, and State ex rel. Landis v. Valz, 117 Fla. 311, 157 So. 651.

I therefore agree to the above order of reversal for the reasons stated herein.

PARKS, Associate Justice, concurs.

ROBERTS, Justice

(concurring specially) .

I concur in the foregoing judgment of reyersal under the principles of equitable estoppel applied by this court in Bregar v. Britton, Fla.1954, 75 So.2d 753.

DREW and THORNAL, JJ., concur.

On Rehearing

PER CURIAM.

We have granted the petition for rehearing without further argument in order to eliminate any apparent conflict between our conclusion in the instant case and our opinion in Josephson v. Autrey, Fla., 96 So. 2d 784.

In the instant case there was a divergence of views among the participating judges as to the grounds for reversal. In the ultimate, however, the majority in this case were of the view that there were here present- elements of equitable estoppel that required reversal under the rule of Bregar v. Britton, Fla.1954, 75 So.2d 753. When so considered there is no conflict whatever between our conclusion in this case and our conclusion in Josephson v. Autrey, supra.

On rehearing granted, therefore, we adhere to the judgment of reversal announced in our original opinion.

ROBERTS and DREW, JJ., PARKS, Associate Justice, and TAYLOR, Circuit Judge, concur.

TERRELL, C. J., concurs specially.

THOMAS, J., dissents.

TERRELL, Chief Justice

(concurring specially).

I agree for reasons stated in first opinion I prepared in this case.


author: PARKS, Associate Justice.

text:
    Richard W. ERVIN, as Attorney General of the State of Florida, Appellant, v. CAPITAL WEEKLY POST, Inc., a Florida corporation, and P. O. Riley, Appellees.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
    Rehearing Denied Sept. 18, 1957.

      Richard W. Ervin, Atty. Gen., Howard S. Bailey and James L. Graham, Jr., Asst. Attys. Gen., for appellant.
    Weldon G. Starry, Tallahassee, for ap-pellees.
   PARKS, Associate Justice.

This is an appeal from the final decree of the Circuit Court of Leon County, entered upon the bill of complaint of the Attorney General praying for an injunction against publication of the hereafter mentioned advertisement, and the answers of the defendants, Capital Weekly Post, Inc., a Florida corporation, and P. O. Riley. The plaintiff and defendants both moved for a summary decree. Upon hearing, the court denied the injunction and entered the decree from which this appeal was taken.

The material facts emerging from the pleadings are not complicated and call for the construction of certain parts of F.S. Section 99.161, F.S.A., in relation to the proposed publication in Capital Weekly Post, a newspaper published and circulated, in Leon County by Capital Weekly Post, Inc., co-defendant, of an advertisement tendered by defendant, P. O. Riley.

According to the allegations of the complaint, Riley delivered the advertisement to his co-defendant, together with the agreed consideration, for its publication in the issue-of November 17, 1955. The advertisement urged and advocated the candidacy of the Honorable Fuller Warren for the office of Governor with relation to the 1956 primaries which were to be held in the spring of that year. It consisted of Mr. Warren’s picture, underneath which appeared the words “Let’s Return Fuller to Tallahassee,” the undisputed meaning of which was “Let’s Return Fuller Warren to Tallahassee as Governor.”

At that time Mr. Warren had made no announcement to any person or to the public that he would be a candidate for that office. Neither defendant Riley nor the Capital Weekly Post, Inc., had consulted Mr. Warren or anyone else on his behalf concerning the proposed publication of the advertisement. Similar publications had already been made in the press of twelve or fourteen cities of the state. The record fails to disclose that Mr. Warren had any knowledge of or connection with any of these publications. It was alleged in the complaint that the advertisement was for campaign purposes in “the promotion” of and “in furtherance” of his, Mr. Warren’s, candidacy and this was denied in the answer. Pending the determination of the legality of the publication it was agreed that publication of the advertisement would be withheld.

The lower court, as heretofore noted, denied the injunction and dismissed the bill, holding that expenditures in the promotion of an unannounced candidacy were not condemned by the election laws. In reaching this conclusion, the court applied to the applicable provisions of the election code the definition of “candidate” set forth in F.S. Section 99.011, F.S.A. This section provides:

“The word ‘candidate’ shall mean any person who has announced to any person, or to the public, that he is a candidate for a certain office.”

The effect of the decree is that until a person has announced his candidacy within the meaning of Section 99.011, F.S.1955, F.S.A., unlimited sums of money expended for newspaper advertisements, communications or other media, may be resorted to in urging or promoting the candidacy of such person.

At the threshold of this appeal the appellees contend that the matter in litigation is moot as to them and for that reason this court should not entertain the appeal. This contention has been settled contrarywise in Bowden v. Carter, Fla., 65 So.2d 871, 873, wherein the court said:

“It is suggested by petitioner-appellee that inasmuch as he has now changed his registered party affiliation to Republican, the operation of Section 101.111 does not now operate to deprive him of his right to vote either in his party primary elections or in general elections, wherefore all questions raised on this appeal are moot as to him. We think, however, that the declaration by the lower court of the invalidity of portions of Section 101.111 as applied in primary elections is of sufficient public interest that this court may review it. Pace v. King, Fla., 38 So.2d 823.”

We reiterate that an appellate court does not lose jurisdiction of a cause even though the matter in controversy has become moot as to one or more of the litigants in cases involving wide public interest or where such matters involve the duties and authority of public officials in the administration of the law and are of general interest to the people. The future administration of the election law by public officials requires the hearing of the merits of the appeal. See State ex rel. Railroad Com’rs v. Southern Tel. & Const. Co., 65 Fla. 67, 61 So. 119; Barrs v. Peacock, 65 Fla. 12, 61 So. 118; Pitt v. Belote, 108 Fla. 292, 146 So. 380; Joughin v. Parks, 107 Fla. 833, 143 So. 145, 147 So. 273.

In the disposition of the cause we find there is no need to discuss or determine the constitutional questions asserted by the defendants who insist that their rights of free speech and freedom of the press guaranteed them would be denied or impaired should the court uphold the allegations of the bill. However, we note that the cases of Smith v. Ervin, Fla., 64 So.2d 166, and Ervin v. Finley, Fla., 64 So.2d 175, 176, seem to have resolved the matter against such contention.

The contention of the Attorney General is that considering the intent of the statutes as a whole, the advertising in question is condemned in point of time as a violation of the election code. In other words, he argues the statutes condemn advertisement or expenditure of money in the promotion of a candidacy by any person prior to an announcement by the candidate. He argues that F.S. Section 99.-011, F.S.A., defining a candidate, was old legislation having originally been incorporated in the Bryan Primary Law of 1913 and brought forward in the several revisions of our election laws but that F.S. Section 99.161, F.S.A., was a 1951 act independent of the election code (amended in 1955 by adding Subsection 99.161 (2) (d)), not burdened with that definition and by legislative action that 1951 act was substituted for and superseded the F.S. Section 99.161, F.S.A., originally prepared for the revised election code. Furthermore, where obviously a definition is contrary to or destructive of the legislative intent of an act of which it is a part, it is not sacrosanct but is subject to statutory construction in relation to conflicting provisions of the act, and, in relation to the curtailing of campaign activities with respect to the time element, the 1955 legislature did, by Section 99.161 (2) (d), condemn and prohibit advertisement by the candidate or any person in his behalf “prior to noon of the first filing date for the nomination which said candidate seeks * *

It is further argued that, since the adoption of Section 99.161 (2) (d) in 1955, expressing the intent that no money shall be spent directly or indirectly for campaign advertising for the promotion of anyone’s candidacy prior to the first day upon which a candidate may qualify, the application of the definition of “candidate” in Section 99.-011 would render ineffectual and abortive the provisions of Section 99.161(2) (d). The result of such construction would permit the candidate, so long as he has not announced for office, to avoid the requirement to comply with any provision of Section 99.161, and until such announcement shall or may be made, those interested in him may urge the candidacy without restraint and thereby completely thwart the legislative intent regulating the matter. Such is the contention of the Attorney General, vigorously pressed in argument before this court and in his excellent brief filed in the cause.

This argument in support of such construction is persuasive and forceful and, if adopted, we may reasonably speculate would fortify and complement the wholesome regulation of candidacy expenditures. Upon a careful study of the act, however, we are unable to go along with it.

In the consideration and amendment of F.S. Section 99.161, F.S.A., the legislature must have carefully considered its general revision of the election code both in 1951 and in 1955, when it added provisions to Section 99.161 designated (2)(d). The finished work carries the earmarks of a thorough consideration of the regulations adopted. We are unwilling to believe that in the revision of these laws it overlooked the definition of “candidacy” retained in F.S. Section 99.011, F.S.A., nor are we satisfied that the legislature failed to evaluate the meaning and impact of that definition on the regulatory provisions, On the contrary we must1 hold the retention of the definition was done advisedly.

We approve and adopt the circuit judge’s decree, the substantial portion of which we here reproduce:

“The question of whether or not the expenditure of money for, or the publication of, the advertisement in question is contrary to law turns upon a construction of the following statutes:
“F.S. Section 99.011, F.S.A.,
“ ‘The word “candidate” shall mean any person who has announced to any person, or to the public, that he is a candidate for a certain office.’

“Section 99.061(2), as amended by Chapter 29936, Laws of Florida 1955,

“ ‘Candidates for nomination of any recognized political party for the office of governor and all other candidates for state offices are required to file their qualification papers and pay their qualification fees and party assessment to the secretary of state at any time after noon of the first filing date, which shall be the seventy-seventh day prior to the first primary, but not later than noon of the sixty-third day prior to the date of the first primary in the year in which any primary is held.’

“Subsection 99.161(2) (d), as amended by Chapter 29936, Laws of Florida 1955,

“ ‘No candidate for nomination or any committee, organization or person on his behalf shall, prior to noon of the first filing date for the nomination which said candidate seeks, make any expenditures for campaign purposes or for the promotion of his candidacy other than for personal travel and incidental expenses, and all expenditures as defined in this section shall be reported as required by this section from the date of public announcement of his candidacy or from the date of filing of his qualification papers, whichever date shall occur first; provided that such candidate or committees or organizations shall be permitted to reserve but make no use of advertising time and space and office facilities prior to qualification.’

Subsection 99.161(4) (a),

“ ‘No contribution or expenditure of money or other thing of value, nor obligation therefor, including contributions, expenditures, or obligations of the candidate himself or of his family, shall be made, received, or incurred, directly or indirectly, in furtherance of the candidacy of any candidate for political office in the state except through the duly appointed campaign treasurer or deputy campaign treasurers of the candidate.’

Subsection 99.161(7),

“ ‘No expenses shall be incurred by any candidate for election or nomination to political office, or by any person, corporation, or association in his behalf, or in furtherance or aid of his candidacy, unless prior to the incurring of the expense a written order shall be made in and upon the form prescribed, and signed by the campaign treasurer of the candidate authorizing the expenditure, and no money shall be withdrawn or paid by any campaign depository from any campaign fund account except upon the presentation of the written order, so signed, accompanied by the certificate of the person claiming the payment, which certificate shall state that the amount named in the order, or such part thereof as may be claimed, naming the amount claimed, is justly due and owing to the claimant, that the order truly states all of the purposes for which the indebtedness was incurred, and that no person other than the claimant is interested, directly or indirectly, in the payment of the claim, and unless an order for payment in and upon the form prescribed, and signed by the campaign treasurer or deputy treasurer, is presented to the campaign depository; provided that any such authorization may be issued by the campaign treasurer to the candidate for traveling expenses still to be incurred. The order authorizing such expenditure, the certificate, and the order for payment shall be on the same piece of paper.’ (Insertion: F.S. Section 104.371, F.S.A., added to the election code by Chapter 28156, Laws of Florida, 1953; “political advertisement is an expression by any mass media, attracting public attention, whether radio, television, newspaper, magazine, periodical, direct mail, display or by means other than the spoken word in direct conversation which shall transmit any idea furthering the candidacy for public office of any person.”)

“The first rule of statutory construction is that, if the language of the statute is clear and admits of but one meaning, the Legislature should be held to have intended what it has plainly expressed, and there is no room for construction. State ex rel. Bie v. Swope, 159 Fla. 18, 30 So.2d 748 and authorities there cited.

“A statutory definition of a word is controlling and will be followed by the •Courts. Greenleaf & Crosby Co. v. Coleman, 117 Fla. 723, 158 So. 421, First National Bank of Miami v. Florida Industrial Commission, 154 Fla. 74, 16 [So.2d] 636.

“Applying the foregoing principles the Court is of the opinion that the statute before it has a plain and definite meaning. Chapter 99, Florida Statutes, is entitled ‘Candidates, Campaign Expenses and Contesting Elections.’ The first section of this chapter defines a candidate as ‘any person who has announced to any person, or to the public, that he is a candidate for a certain office.’ Obviously this is a rather restricted definition, but it is one which has been a part of our statute law for more than forty years, and one with which the Court must assume that the members of the Legislature were familiar.

“It will be observed that throughout Section 99.161 the word ‘candidate’ is used to designate the persons whose activities, or in behalf of whom the activities of others, are regulated. If we substitute the statutory definition of ‘candidate’ for that word wherever it appears, each subsection, each' sentence, of the statute has a definite, clear, unambiguous meaning.

“The conclusion is inescapable that the statute prohibits advertising only by or on behalf of those persons who have announced their candidacy for office.

“It is vigorously argued by the Attorney-General that this construction of the statute-will defeat the legislative intent and that, for this reason, it should not be adopted.

“The Legislature is charged with the duty of enacting statutes prohibiting all undue influence upon elections from power, bribery, tumult or other improper practices. Section 26, Article III, Florida Constitution, F.S.A. The statute under consideration was obviously enacted for the purpose of carrying out this constitutional duty. But the Legislature has expressed in the statute, in unmistakable language, that which it considers necessary to comply with the constitutional mandate. The Courts have no authority to add to or take from what the Legislature has done. The duty of the Courts is to construe and apply. It may well be that the members of the Legislature did not visualize an active advertising campaign by numerous citizens to induce an individual to become a candidate. If this be assumed, it does not give the Courts the power to add to the statute, or to make it cover a situation which is clearly not within the meaning of the language used.

“On the other hand it may well be that the legislature, confronted with the duty of enacting a statute preserving the purity of elections, deemed it sufficient to regulate the expenditure of money in advertising in behalf of announced candidates. This argument may be fortified by a consideration of the fact that the Legislature did fix a date far in advance of the primary elections by which each person to be voted upon in the primary must qualify as a candidate with a designated public officer and thus announce his candidacy if he has not previously done so. Thereafter he and his candidacy come within the operation of the statute. If the statute, in its present form, fails to accomplish its purpose, the Legislature is the instrumentality of government to make the necessary corrections. It might do this by requiring candidates to qualify a longer period of time before the date of the elections. It might do this by changing the definition of the word ‘candidate’ as used in- the statute. It might devise other means of making the statute better serve its intended purpose if, in practical operation, the statute in its present form is found to be insufficient.

“It may be well to state that the Court is not at this time passing upon a situation in which a person desiring to be elected to public office may attempt to evade the statute by making secret, private or confidential announcement of his candidacy and conspire with others to promote and conduct a campaign without complying with the statute. If an individual has made an announcement to my person of his candidacy, he comes within the statute no matter how confidential such announcement may be. Nor is the Court called upon at this time to determine what may or may not constitute an ‘announcement’.

“Having reached the conclusion that the acts described in the complaint in this cause are not in violation of the statute as written, the Court does not make any decision as to the constitutional validity of the statute.”

Affirmed.

TERRELL, C. J., and THOMAS and THORNAL, TT-, concur.


text:
    Ollie B. YOUNG, Appellant, v. John L. YOUNG, Appellee.
    Supreme Court of Florida.
    July 10, 1957.
    Rehearing Denied Sept. 23, 1957.
    J. Stockton Bryan, Jr., West Palm Beach, for appellant.
    Caldwell, Pacetti, Robinson & Foster, West Palm Beach, for appellee.
   THORNAL, Justice.

Appellant, Ollie B. Young, who was plaintiff below, seeks reversal of that portion of a final decree denying -to her an. attorney’s fee in a divorce proceeding.

The sole point is whether a putative husband, who defends against a divorce complaint by alleging that he is a party to an existing prior marriage, is liable for fees for his wife’s attorney in a divorce proceeding instituted by her.

Alleging that she and the defendant, John L. Young, were married in 1952, the appellant, Ollie B. Young, filed her complaint for divorce on the grounds of extreme cruelty and adultery. Pursuant to her petition therefor she was awarded temporary weekly alimony and also pen-dente lite attorney’s fees in the amount of $50. The appellee husband answered denying the charges. Subsequently he was permitted to file a counterclaim seeking divorce on the ground of extreme cruelty. Months later he was again permitted to amend his counterclaim alleging the existence of a prior living spouse. Upon the taking of proofs the Chancellor entered a final decree annulling the marriage between the parties to this cause and further providing “There being no marriage, no basis exists for the allowance of permanent alimony or an additional attorney’s fee.” The appellant seeks reversal of that portion of the final decree which denied to her an award of fees for her attorney for services rendered to the date of the final decree.

Appellant contends that when a marriage is annulled on the counterclaim of a husband on the ground that he has another living prior spouse in a divorce action brought by an innocent wife, upon proof of necessity of the wife and ability of the husband, the wife is entitled to an award of counsel fees for services rendered to the date of the final decree.

The appellee husband contends that inasmuch as the putative marriage was void ab initio there is no basis for an award of counsel fees to the wife.

We have several times held that even though a marriage is void in its inception it is to the best interests and good order of society that the invalidity of the marriage be adjudicated by a court of competent jurisdiction. Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775; Jones v. Jones, 119 Fla. 824, 161 So. 836, 104 A.L.R. 1.

This is obviously the legislative justification for including among the grounds for divorce in this state “That either party had a husband or wife living at the time of the marriage sought to be annulled.” Section 65.04(9), Florida Statutes, F.S.A. In stipulating the bases on which a divorce decree may be granted the Legislature has therefore expressly recognized the propriety of a judicial proceeding to dissolve the apparent bonds of matrimony uniting a man and a woman under circumstances where one or the other is legally married to a third party. Section 65.08, Florida Statutes, F.S.A., provides in part that “In every decree of divorce in a suit by the wife, the court shall make such orders touching the maintenance, alimony and suit money of the wife, or any allowance to be made to her, * * * as from the circumstances of the parties and nature of the case may be fit, equitable and just; * * By reading Sections 65.04 and 65.08, Florida Statutes, F.S.A., in pari materia it becomes perfectly clear that the Legislature has recognized the existence of a prior living spouse as ground for á divorce decree and that in any such divorce proceeding the court shall make such orders with reference to allowances for the wife as fit the circumstances of the parties and the nature of the case.

In Todd v. Todd, 151 Fla. 134, 9 So.2d 279, a woman brought a complaint against her putative husband on the ground that he was married to a prior living spouse. The Chancellor denied temporary alimony and counsel fees. On certiorari the order of denial was quashed on the ground, among others, that Section 65.07, Florida Statutes, F.S.A., applicable to temporary alimony and suit money, applies to all of the grounds for divorce specified by Section 65.04, Florida Statutes, F.S.A. We see no reason to distinguish the obligation of the husband for attorney’s fees and suit money under Section 65.08, Florida Statutes, F.S.A.

We have on other occasions held that under various factual situations that have developed in divorce proceedings, a court of chancery, independently of statute and as an incident to chancery jurisdiction, has the power to make and enter appropriate orders allowing counsel fees to the wife. Prine v. Prine, 36 Fla. 676, 18 So. 781, 34 L.R.A. 87; Ball v. Ball, 160 Fla. 601, 36 So.2d 172; Courtney v. Courtney, 108 Fla. 276, 146 So. 229.

The appellee relies on Therry v. Therry, 117 Fla. 453, 158 So. 120. This case appears to us to be clearly distinguishable from the matter before us. In the Therry case the wife sued for divorce on several grounds. A husband counterclaimed on the ground that the wife had a prior living spouse. The Chancellor by the final decree denied counsel fees to the wife stating that it appeared from the record that there was never a legal marriage. However, it will be noted from the opinion of this Court that counsel fees had been awarded to the wife during the litigation and additional counsel fees were allowed to her for services rendered by her attorneys in the Supreme Court. This Court held that it* was not error to deny further fees to be paid by the husband cross-complainant. Actually instead of being authority for the position of the appellee, Therry v. Therry, supra, in substantial measure supports the position of the appellant inasmuch as -fees for the services of counsel for the wife, who had committed the wrong, were allowed to her on appeal obviously subsequent to the final decree.

We therefore hold that in a divorce action by an innocent wife when she is met by a counterclaim of her putative husband: announcing the invalidity of the “marriage” because of the existence of a prior living spouse, the wife is entitled to recover reasonable attorney’s fees for the services of her attorney to the date of the final decree. This rule assumes of course the presence of other elements such as the necessities of the wife and the husband’s ability to pay. Under such circumstances, the innocent “wife” should not be required to bear this financial burden. Any other rule would ignore the traditional concept of equity that a man should not be permitted to profit or benefit by his own wrong.

The decree under assault denying to the appellant recovery of fees for her attorney for services rendered to the entry of the final decree is therefore reversed and the cause is remanded for further consideration by the Chancellor on the basis of the showing made as to the necessities of the appellant, the abilities of the appellee, and the reasonableness of the fee to be allowed.

Reversed and remanded for further proceedings consistent herewith.

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


author: DREW, Justice.

text:
    CITY OF MIAMI BEACH, a municipal corporation organized and existing under the laws of the State of Florida, Appellant, v. Preston G. PREVATT, as ancillary administrator in Estate of Edith L. Trees, Deceased, et al., Appellees. CITY OF MIAMI BEACH, a municipal corporation organized and existing under the laws of the State of Florida, Appellant, v. Gilda DAHLBERG, a widow, and Polly Lux, a free dealer, Appellees. CITY OF MIAMI BEACH, a municipal corporation organized and existing under the laws of the State of Florida, Appellant, v. TEDLAND REALTY CORPORATION, a Florida corporation, Appellee.
    Supreme Court of Florida.
    July 24, 1957.
    Rehearing Denied Sept. 18, 1957.

      Ben Shepard, Joseph A. Wanick and Anderson & Nadeau, Miami, for appellant.
    Hoffman, Kemper & Johnson, Miami Beach, and Shutts, Bowen, Simmons, Pre-valí & Julian, Miami, for appellees.
    Warren, Klein & Moore and Sibley & Davis, Miami Beach, for intervenors.
   DREW, Justice.

These zoning cases were consolidated for trial in the lower court and after trial a decree was entered favorable to the contention of the property owners that the zoning ordinance of the City of Miami Beach, which classified the three parcels of land involved in the litigation in the three suits as single family estates, was unconstitutional and void insofar as it applied to their lands. The trial court decreed that the property owners were entitled to use their lands in such manner as would permit the construction thereon of apartments or hotels and enjoined the city from enforcing the zoning ordinance insofar as it limited the use of several properties to single family estate purposes.

Following the entry of the decree of the lower court certain property owners in the affected area applied to the lower court for permission to intervene, which was denied. Certiorari was taken to this Court. The order denying the right of the property owners to intervene was quashed and the intervention was allowed. Wags Transportation System, Inc., v. City of Miami Beach, Fla., 1956, 88 So. 2d 751. Thereafter the city and the inter-venors appealed and the three suits were consolidated by this Court for consideration and are disposed of by this single opinion.

The subject zoning ordinance of the City of Miami Beach was adopted December 3, 1930 pursuant to Chapter 9837, Special Acts of 1923, and at a time when the population of the City of Miami Beach was about 6,000. The several parcels of land involved in this litigation are a part of a strip of land approximately a mile and a half in length from north to south between the Firestone estate and the Royal York Hotel property and lying between Collins Avenue and the Atlantic Ocean. The 1930 ordinance classified this property in a manner which restricted its use to single family purposes. Its designation under the ordinance as single family estates has remained in effect from the date of the ordinance to this time. Similar land lying to the south of the aforementioned strip of land was classified in a like manner under the original zoning ordinance but in the case of City of Miami Beach v. First Trust Co., Fla.1949, 45 So. 2d 681, this Court held on rehearing that such original ordinance, insofar as it applied to the land involved in that litigation (the old Firestone estate consisting of some 7y2 acres), was unconstitutional and void. The result of that decision was to reclassify the lands there in question for hotel and apartment house purposes. This decision was handed down in 1949 and marked the beginning of a long series of cases obviously designed to open up all of the property above described north of the Firestone estate for hotels and apartments.

The next case which appeared before us involving portions of this land was City of Miami Beach v. Lachman, Fla.1953, 71 So. 2d 148, wherein we reversed a decree of the trial court which held the ordinance aforesaid unreasonable and unconstitutional as to ten separate parcels of land lying within this area of approximately a mile and a half. In that case we again approved and confirmed the “fairly debatable” rule in zoning litigation which, it was argued, had been abandoned or overruled in City of Miami Beach v. First Trust Company, supra. On this subject and with reference to this rule, this Court said, speaking through Mr. Justice Mathews, in City of Miami Beach v. Hogan, Fla.1953, 63 So.2d 493, 494:

“In the case of State ex rel. Office Realty Co. v. Ehinger, Fla., 46 So.2d 601, decided May 30, 1950, which is subsequent to the opinion on rehearing in City of Miami Beach v. First Trust Co., supra, this court went back to its original holding in the case of State ex rel. Taylor v. City of Jacksonville [101 Fla. 1241, 133 So. 114], supra, and City of Miami Beach v. Ocean & Inland Co. [147 Fla. 480, 3 So.2d 364], supra, to the effect that with reference to zoning, the court will not substitute its judgment for that of the municipality but will sustain the legislative intent of the ordinance if the matter is ‘fairly debatable.’ ”

Reverting now to City of Miami Beach v. Lachman, supra, where we again affirmed and adhered to the “fairly debatable” rule — from which we have not since departed — we said [71 So.2d 150] :

“The effect of the trial court’s ruling was to hold that the ordinance was unreasonable and not ‘fairly debatable’. In so holding did he properly appraise the evidence? In its highly controversial state did the trial court substitute his judgment for that of the City Council, and under the circumstances was he warranted in doing so? The leading case in the country on the question is Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016, but we do not have to leave our own State in search of law to settle the point. In addition to the last cited case, appellant relies on State ex rel. Taylor v. City of Jacksonville, 101 Fla. 1241, 133 So. 114, City of Miami Beach v. Elsalto Real Estate, Inc., Fla., 63 So.2d 495, Segal v. City of Miami, Fla., 63 So.2d 496, and State ex rel. Office Realty Co. v. Ehinger, Fla., 46 So.2d 601. Appellee relies on Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642, City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, and City of Miami Beach v. First Trust Co., Fla., 45 So.2d 681.
“Village of Euclid, Ohio v. Ambler Realty Co. approved the authority of a municipality to promulgate zoning regulations on the theory that the increase and concentration of population has developed and will continually require more restrictions in respect to the use of private property in urban centers. This case also promulgated the doctrine of legislative classification for zoning purposes and declared that if ‘fairly debatable’ it should be upheld. The argument in the case at bar revolves around this doctrine.” (Emphasis added.)

Moreover, involved in the Lachman case was the vital question of the effect of a decree concerning ten very substantial portions of land in this questionable area on the entire zoning ordinance of the City of Miami Beach. We recognize the basic responsibility of the City Council in determining the appropriate classification of the property in the City under its zoning ordinances and in weighing this vital point and the fact that the Council of the City has exercised its judgment in declaring the property to be properly zoned for residential estate purposes, we said in that case:

“The amount of property involved is so great that to changé its classification would be to necessarily affect the entire general zoning plan of the city. These are matters for the city to settle and adjust and when they enter the picture the Court should not invade the city’s authority absent a paramount constitutional right which is not shozvn in this case.” (Emphasis added.)

At the time the Lachman case was pending, we were also considering on certiorari the case of City of Miami Beach v. Kay, Fla. 1954, 71 So.2d 725. The property involved in the Kay litigation lay to the south and adjacent to the property which the City of Miami Beach was seeking to condemn and which is referred to in City of Miami Beach v. Hogan, supra, and City of Miami Beach v. Elsalto Real Estate, Inc., Fla.1953, 63 So.2d 495. The property involved in the Lachman litigation adjoined the property then being condemned on the north. In the Kay case we held, on certiorari [71 So.2d 726]:

“If and when the title to such lots for park purposes is acquired, we think the case is ruled by the City of Miami Beach v. First Trust Co., last cited. * * * If, however, the City of Miami Beach should fail to acquire the property for park purposes, then this case would be ruled by City of Miami Beach v. Lachman, 71 So.2d 148, * * *»

The effect of that holding at that time and under the conditions then prevailing was to say that if the City of Miami Beach acquired the land it sought to condemn and converted it to park purposes, such land would constitute a buffer zone which would properly separate the hotel and apartment property to the south from the residential area to the north.

The case of City of Miami Beach v. Lachman made its second appearance in this Court in 1956 and was disposed of by per curiam opinion. City of Miami Beach v. Lachman, Fla.1956, 85 So.2d 226. In the per curiam opinion we acknowledged our familiarity with the history of the zoning litigation of Miami Beach affecting this large area of land and held that in applying the holdings of this Court in the numerous cases referred to therein, and previously discussed here, the bill of complaint failed to state a cause of action and should have been dismissed. It is to be observed, of course, that in that case we were reviewing an order of November 8, 1955 overruling a motion to dismiss a complaint relating to a factual situation concerning the Miami Beach zoning ordinances existing at a time prior to the date of the filing of the complaint.

From the very inception of the litigation involving this large area of land in 1949, every decision which this Court has written concerning it has basically rested upon the proposition that this Court would not substitute its judgment for that of the duly constituted officials of the City of Miami Beach on the question of the use classification of these lands. We have discussed at great length in these cases the “fairly debatable” rule and every case we have decided rested upon this now well established principle of the law of zoning. Cf. City of Miami Beach v. Wiesen, Fla. 1956, 86 So.2d 442. One cannot help but 'be impressed by the fact, in reading the numerous decisions that we have written on the subject, that every case presented to us was one which invoked weighty consideration in this Court and in which there was a wide divergence of views by the members of the Court. The conclusion is inescapable from these decisions that the scales were tipped in each instance in favor of the City because of the fact that they had exercised the judgment vested in them under law in favor of the single family residence classification.

The City of Miami Beach at the time of oral argument filed in this Court a statement as follows:

“Now Comes the appellant, City of Miami Beach, by its undersigned attorneys, and shows unto the Court that on the 17th day of April, 1957 the City Council of said City passed and adopted an ordinance amending Ordinance No. 289, commonly known as the ‘Zoning Ordinance of Miami Beach, Florida’, so as to permit the owners of the land which is the subject matter of the above styled causes to be used in such a manner as will permit the construction thereon of apartments or hotels, a certified copy of said ordinance being attached hereto.”

Attached to the statement is a certified copy of such amended ordinance of the City of Miami Beach, the provisions of which, so far as they concern the land in this litigation and, as we understand it, all of the large section of ocean front lands which so long have been in litigation permit the use of such lands for hotels and apartments in conformity to the provisions of the decree of the trial court which is now before us for review. The oral argument on this appeal was made not by counsel for the City but by counsel for the intervening property owners owning land in the affected area.

The principal point raised on the appeal and argued by appellant intervenors is completely undermined by the enactment of the amendatory ordinance. The basic contention of appellants in this appeal is that the reasonableness of the ordinance of the City of Miami Beach, (original ordinance No. 289 of 1930) which was declared void and unenforceable by the trial court, being “fairly debatable”, the decree of the trial court holding the ordinance unconstitutional must be reversed in accordance with the previous holdings of this Court in the numerous cases which we have cited and discussed. Now that the ordinance of the City of Miami Beach classifies this property for use as hotel and apartments, the very argument made by appellant necessarily leads to an affirmance of the decree of the trial court. Cf. Gadsden County v. Kerce, 1940, 141 Fla. 596, 193 So. 772; Moody v. Volusia County, 1927, 93 Fla. 1115, 113 So. 563. Also see I Florida Law and Practice — Appeals Sections 181, 182. The city fathers have determined, as they were directed to do in the decree here under review, that the ordinance which restricted this property to residential use is not warranted and have provided other uses therefor. The record reveals no basis on which we would be authorized to upset the decree nor anything that would be accomplished by doing so.

Another point urged by appellants is that under the doctrine of res judicata and stare decisis the matters and things set forth in the several complaints were foreclosed by the prior decisions of this Court. We cannot agree with this contention.

Without entering into an extended discussion of the subject, the doctrine of res judicata or estoppel by judgment is one which should be applied in zoning cases with great caution. It is, of course, an essential element, among others, of res judi-cata, that there be an identity of causes of action and this means an identity of the facts essential to the maintenance of the action. The former decisions of this Court relating to the validity of the zoning ordinance with reference to the lands in the large area under discussion were necessarily based upon the facts existing at that time. In fast growing areas, such as the City of Miami Beach, changes occur with great rapidity; it cannot, therefore, be said that, even where the same parties are involved, an adjudication of the reasonableness of a zoning ordinance at any given time is necessarily res judicata or constitutes an estop-pel by judgment in subsequent litigation between the same or different parties. This question was dealt with and discussed by the Wisconsin Supreme Court in Ward v. Prospect Manor Corp., 188 Wis. 534, 206 N.W. 856, 861, 46 A.L.R. 364. In that case the Wisconsin Court pointed out:

“ * * * ,T]ie present decree acts only upon existing facts, and is based upon the conditions presently existing in the neighborhood. If and when conditions change, the court will have power to deal with such changed conditions without any embarrassment by reason of this decree. This decree declares the rights of the parties as they exist by reason of the present situation. It cannot affect a changed situation which may arise in the future. We do not think it necessary that the decree specifically authorize modifications as conditions in the neighborhood change. A decree or judgment disposes of the rights of the parties as they presently exist and as they appear from the evidence in the case.”

On the same point, in the case of People v. Ocean Shore R. Inc., 32 Cal.2d 406, 196 P.2d 570, 578-579, 6 A.L.R.2d 1179, the California Court said:

* * * The doctrine does not apply, however, where there are changed conditions and new facts which did not exist at the time of the prior judgment. See Guardianship of Snowball, 156 Cal. 240, 242, 104 P. 444; Timm v. McCartney, 9 Cal.App. 2d 230, 235, 49 P.2d 315; 15 Cal.Jur. §§ 201, 214, pp. 154, 179. In the present case the facts are not the same, and the Spring Valley decision is not res judi-cata. * * * ”

Even if all of the parties were identical, which they are not in these consolidated cases, and even if the action related to the same lands as in the former cases, which it does not, the record reveals changed conditions at the time of the entry of the decree appealed from which would render inoperative and inapplicable the principle of res judicata urged by the appellant.

Nothing in this opinion is to be construed as passing on the effect of the ordinance adopted by the City of Miami Beach on April 17, 1957 except insofar as it applies to the particular property involved in this appeal.

Moreover, the evidence in this record has been carefully examined by us and we think the conclusion is inescapable that, under the conditions existing as to the lands involved in this litigation at the time the chancellor entered his decree, the conclusion he reached is without error and should be affirmed, regardless of the subsequent enactment of the ordinance after the date •of the final decree.

The decree entered in these consolidated cases is hereby affirmed.

TERRELL, C. J., HOBSON, ROBERTS, and THORNAL, JJ., and JONES, ■Circuit Judge, concur.

THOMAS, J., not participating.


author: ROBERTS, Justice.

text:
    Virginia Willys LUCOM (Formerly Virginia Willys de Landa), Appellant, v. ATLANTIC NATIONAL BANK OF WEST PALM BEACH, Potter, Langbein & Burdick, J. W. Salisbury, Appellees.
    Supreme Court of Florida.
    July 10, 1957.
    Rehearing Denied Sept. 18, 1957.

      Clyde Trammell, Jr., West Palm Beach,, and Charles M. Trammell, Washington, D. C., for appellant.
    J. W. Salisbury, Palm Beach, for appel-lees.
   ROBERTS, Justice.

This appeal brings here for review an order of the Circuit Court of Palm Beach County affirming an order of the County Judge approving a final accounting of the appellee, Atlantic National Bank of West Palm Beach, as guardian of the property of the appellant during her alleged incompetency, and awarding fees and costs to the guardian and its attorneys. The appellant’s principal contentions here are (1) that neither the guardian nor its attorneys are entitled to compensation because the entire guardianship proceedings were null and void; and (2) that, even if compensation is allowable, the County Judge erroneously applied a straight percentage of the gross value of the estate in fixing the amount of compensation payable to the guardian and its attorneys without considering the actual value of the services-rendered.

The background against which these •questions must be decided is as follows: Appellant was first adjudicated incompetent by the County Judge of Palm Beach County, Florida, in December 1952 during her confinement in the Pennsylvania Hospital in Philadelphia, Pa., for treatment of a mental illness. She was released from the hospital in April 1953 and was judicially restored to competency by order of the Circuit Court of Palm Beach County in May 1953. The appellee bank was appointed and acted as co-guardian of appellant’s property during this period of incompetency. In July of 1953 her illness recurred and she voluntarily returned to the same hospital for further treatment. In what was apparently an attempt to follow the procedure approved in In re Cameron’s Estate, 158 Fla. 91, 28 So.2d 110, for obtaining the appointment of a guardian of the property in this state •of a Florida resident who is adjudged incompetent by the court of another state while temporarily residing there, a habeas •corpus proceeding was initiated in a Pennsylvania court by appellant’s son and ■daughter, allegedly on behalf of appellant, under the provisions of the Pennsylvania Mental Health Act of 1951, Sec. 1071 et ■seq., 50 Purdon’s Pa.Law. This proceeding culminated in an order of the Pennsylvania court, dated Sept. 15, 1953, finding that appellant was “mentally ill” within the meaning of that Act defining “mental illness” •as “an illness which so lessens the capacity •of a person to use his customary self-control, judgment and discretion in the conduct ■of his affairs and social relations as to make it necessary or advisable for him to be under care”, and declining to release •appellant from the Pennsylvania Hospital, Upon the basis of this order and the transcript of the habeas corpus proceedings in which it was entered, the County Judge of Palm Beach County, by order dated October 7, 1953, re-appointed the appellee bank as guardian of the property of the appellant, the petition for such appointment having been filed by the appellant’s son and daughter, both sui juris. The appellant was released from the Pennsylvania Hospital in December 1953 and returned to her home in Palm Beach, Florida. Sometime after May 1954 she established residence in the state of New York and, in October 1954, was adjudicated to be competent to manage her property by a court of that jurisdiction. The questions presented here and in the court below arose upon objections filed by the appellant to the bank’s final accounting of its administration of her estate and application for compensatíoñ for itself and its attorneys.

There is some merit to the appellant’s contention that an order adjudicating that a person is so mentally ill as to require further treatment in a hospital is not an adjudication of “incompetency” insofar as the ability to manage property is concerned. Cf. In re Weightman’s Estate, 1937, 126 Pa.Super. 221, 190 A. 552; In re Refior, 1947, 160 Pa.Super. 305, 50 A,2d 523, 527; In re Lambert, 1954, 33 N.J. Super. 90, 109 A.2d 423; Fleming v. Bithell, 1935, 56 Idaho 261, 52 P.2d 1099; People v. McConnell, 1927, 80 Cal.App. 789, 252 P. 1068; Manello v. Bornstine, 1954, 44 Wash.2d 769, 270 P.2d 1059. But this question need not be decided, since we are here dealing with a fait accompli — the ap-pellee bank was re-appointed by the County Judge, accepted the guardianship in good faith, and has executed the trust to the best of its ability. Even if not a guardian de jure, the bank was a guardian de facto of the appellant’s property and, as such, is entitled to an equitable credit for expenditures which were made in good faith for the ward, Alexander v. Hillebrand, 1905, 140 Mich. 490, 103 N.W. 849; Smith v. Cameron, 1909, 158 Mich. 174, 122 N.W. 564; Pemberton v. Leatherwood, Tex.Civ. App.1949, 218 S.W.2d 500; Maryland Casualty Co. v. Lawing, 1945, 225 N.C. 103, 33 S.E.2d 609; In re Beisel’s Estate, 1895, 110 Cal. 267, 40 P. 961; and, in the proper circumstances, a guardian de facto is entitled to reasonable compensation for its services in behalf of the ward. See Kelly v. Kelly, 1931, 89 Mont. 229, 297 P. 470; Jessup v. Jessup, 1897, 17 Ind.App. 177, 46 N.E. 550; Harwood v. Boardman, 1866, 38 Vt. 554. But see Powers v. Chisman, 1950, 217 Ark. 508, 231 S.W.2d 598.

In all the circumstances here, we think the appellee hank is entitled to compensation for its services rendered in good faith to the appellant and that the lower courts did not err in so holding. The same thing is true of the services of counsel employed by the appellee bank.

But the compensation allowable to the bank, as guardian, must be “just and reasonable”, Sec. 745.32, Fla.Stat.1955, F.S.A.; and those allowable to the attorneys must have been rendered “to the ward or to the guardian in the ward’s behalf”, Sec. 745.33, Fla.Stat.1955, F.S.A. In the absence of statutory authorization therefor, the court cannot arbitrarily fix a fee schedule and, without evidence of reasonable value of the services rendered, determine what is “just and reasonable” compensation. See In re Messer’s Guardianship, 1943, 242 Wis. 66, 7 N.W.2d 584.

Insofar as the compensation awarded the appellee bank is concerned, it appears that the court’s determination may have been based, in part, upon a consideration of comparable fees allowed by statute to executors and administrators for the administration of decedent’s estates, Sec. 734.01, Fla.Stat.1955, F.S.A. But there was other evidence as to the services rendered by the appellee bank, and the reasonable value thereof, sufficient to support the award of compensation. Accordingly, the appellant’s contention that the compensation awarded to the appellee bank was a “gross abuse of discretion” cannot be sustained.

As to the amount of the fee awarded to the appellees Potter, Langbein and Burdick, as counsel for the bank, an entirely different situation is presented. The record shows that in all litigation instituted or defended by the appellee bank in behalf of the ward the bank was represented by other counsel; and in most of the litigation these appellees acted as counsel for the appellant’s son or daughter, or both, in opposition .to the appellee bank or to the appellant. All of the testimony adduced by appellees on the matter of their fees was based on a percentage of the value of the incompetent’s estate, although there was testimony of the value of “extraordinary” services performed by counsel, such as representing the appellant’s son in obtaining his appointment as guardian of an infant daughter of appellant, and rendering “supervisory” services over litigation actually conducted by other out-of-state or local counsel employed by the appellee bank for that purpose. The order allowing compensation to these attorneys did not set forth the particular services for which compensation was granted, so we are unable to tell what claims were granted and which were disallowed. In all the circumstances here, we think the ends of justice require that the compensation order be reversed as to the appellees Potter, Langbein and Bur-dick, and the cause remanded for further consideration of this question, remembering that a court “is without power to measure an attorney’s fee except on the basis of quantum meruit or a quid pro quo,” Brickell v. Di Pietro, 1943, 152 Fla. 429, 12 So.2d 782, 783, and that under the statute the only services compensable are those rendered either to the ward or to the guardian in the ward’s behalf.

The appellant also questions here certain items of costs claimed by the ap-pellee bank and the appellees Potter, Lang-bein and Burdick. Three of the items relate to the activity of the appellee counsel in attending the New York proceedings by which appellant sought and obtained an adjudication of her competency, in which the appellee counsel represented the appellant’s son and daughter (not the appellee bank, which employed other counsel) and unsuccessfully opposed the appellant’s petition. Clearly, these are not proper items of expense incurred on behalf of the appellant. Two of the items are attorney’s fees for out-of-state counsel employed by the bank —one for the New York counsel who was employed by the appellee bank to “stand by” and observe the New York proceedings referred to above, the bank taking a position of strict neutrality in the proceedings; and the other for Philadelphia counsel who successfully opposed the appellant’s suit for a declaratory decree as to the effect of the September 1953 order entered in the habeas corpus proceedings which formed the basis for the appointment of the bank as guardian of appellant’s property. Both of these expense items appear to have been incurred solely for the benefit and protection of the guardian itself, and not for the appellant’s benefit or protection. They were not, therefore, items of expense properly chargeable against appellant. The remaining item is a charge of $50 incurred by appellee counsel as a fee to an attorney employed by them to investigate Wilson C. Lucom, whom the appellant married in May of 1954, some five months after her release from the hospital. Appellee counsel contend that this is a proper charge against appellant because it was to the interest of appellant’s minor child (who was under the guardianship of appellant’s son) to have information concerning her mother’s new husband and it was thus a proper charge against appellant “for the care, support, education and maintenance of the dependents, if any, of such ward,” as authorized by Sec. 744.64, Fla.Stat.1955, F.S.A. This contention is obviously without merit, and no other basis for this charge has been suggested nor can be conceived.

The other questions presented here by the appellant have been considered and no reversible error has been found.

Affirmed in part and reversed in part and the cause remanded for further proceedings not inconsistent herewith.

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


text:
    F. H. PETERSON, Appellant, v. Abraham GREENHOUSE and Fannie Greenhouse, his Wife, Appellees.
    Supreme Court of Florida.
    Oct. 4, 1957.
    Rehearing Denied Oct. 30, 1957.
   PER CURIAM.

Affirmed.


text:
    PURITAN DAIRY, Inc., a Florida Corporation, Appellant, v. Dexter LOWRY, Fred B. Ragland, N. G. Cochran, Jr., Howard D. Walton, Alex G. Shaw, Wilbur J. Casey and Henry J. J. Schneider, as and Constituting the Florida Milk Commission: L. K. Nicholas, Jr., as Administrator for the Florida Milk Commission; and Thomas J. Kelly, as Sheriff of Dade County, Florida, Appellees.
    Supreme Court of Florida.
    Oct. 11, 1957.
   PER CURIAM.

Affirmed.


author: PER CURIUM.

text:
    TAMCO CORPORATION, Incorporated, Appellant, v. Earl TALBOT, W. Bea Adams, Maxwell Melton, A. L. Smith, W. F. Cox, Pasco Rabon, C. A. Chessher, and W. A. Jernigan, Appellees.
    Supreme Court of Florida.
    Oct. 9, 1957.
   PER CURIUM.

Affirmed.


text:
    Fred S. KEENE, Appellant, v. Donald M. PAYNE, Appellee.
    No. 59.
    District Court of Appeal of Florida. Second District.
    Aug. 15, 1957.
   The attorneys for appellant and for appellee have notified the Court that this cause has been settled by compromise, and the attorneys for appellant having filed a Praecipe for Dismissal, it is,

Ordered and Adjudged that this cause be and the same is hereby dismissed.


text:
    Mabel Esther BRAWN, Appellant, v. Francis Edwin BRAWN, Appellee.
    No. 12.
    District Court of Appeal of Florida. Second District.
    Aug. 26, 1957.
   The attorneys for appellant and for ap-pellee having jointly moved the Court for an Order of Dismissal, it is, upon consideration,

Ordered and Adjudged that this cause he and the same is hereby dismissed.


text:
    Erris BROWN, Appellant, v. Aaron TEPPER, Appellee.
    District Court of Appeal of Florida. Second District.
    Oct. 16, 1957.
    Joe E. Hodges, Fort Lauderdale, for appellant.
    Morgan & Kane, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed.

KANNER, C. J., and PLEUS and ALLEN, JJ., concur.


text:
    Ben L. DOWNS, Mayor, Howard Grace and Austin Todd, as Commissioners, Appellants, v. STATE of Florida, ex rel. Olin F. BLAKLEY, Francis A. McDonald, Agnes Clarke, Sam Z. Douglas, Jr., Phoebe E. McDonald, Edythe E. Coler, Martha C. Sandstrom, and John R. McKeown, Appellees.
    No. 33.
    District Court of Appeal of Florida. Second District.
    Sept. 17, 1957.
   The attorneys for appellants and for appellees having jointly moved the Court for an Order of Dismissal, it is, upon consideration,

Ordered and Adjudged that this cause be, and the same is hereby dismissed.


text:
    Thelma CADE, Appellant, v. STATE of Florida, Appellee.
    No. 14.
    District Court of Appeal of Florida. Second District.
    Sept. 6, 1957.
   The attorney for appellant having filed a written motion or petition for an order of dismissal, and the State of Florida by the Assistant Attorney General having consented to the granting of said motion, it is upon consideration,

Ordered and Adjudged that this cause be, and the same is hereby dismissed.


author: CARROLL, CHAS., Chief Judge.

text:
    Madeline FARINA, Appellant, v. Louis FARINA, Appellee.
    No. 57-108.
    District Court of Appeal of Florida. Third District.
    Oct. 1, 1957.
    Rehearing Denied Nov. 6, 1957.
    Arthur A. Kimmel and Amos Benjamin, Miami, for appellant.
    Joseph Pardo, Miami, for appellee.
   CARROLL, CHAS., Chief Judge.

The appellant sued her husband for divorce, and filed this appeal from an adverse final decree dated October 12, 1956, which denied her a divorce, granted a divorce to appellee on his counterclaim and awarded appellant lump sum alimony of $1,500, plus counsel fees and costs.

The notice of appeal to the Supreme Court of Florida was filed in the circuit court December 5, 1956, and the appeal was lodged in the Supreme Court on January 21, 1957. The record-on-appeal and briefs were filed there in March of 1957.

This court heard argument in the cause following its transfer from the Supreme Court to this court for consideration and determination, by order dated August 5, 1957, pursuant to authority vested in the Supreme Court of Florida by Section 26(6), Article V of the Constitution as amended at the General Election in November 1956, effective July 1, 1957, F.S.A.

The appellant in her brief, stated the following four questions or points:

“Point I. Whether or not the evidence adduced by the plaintiff at the final hearing supported her allegations of extreme cruelty against the Defendant. (Plaintiff’s Assignments of Error Nos. 1, 2, 6, 9, 11, 12 and 14).
“Point II. Whether or not the Lower Court erred in finding for the Defendant in his Counter-Claim alleging extreme cruelty on the part of the Plaintiff where the evidence adduced by the Defendant was for the most part hearsay, and where the evidence failed to show that the alleged actions of the Plaintiff produced an ill effect on the Defendant’s health or made cohabitation impossible. (Plaintiff’s Assignments of Error Nos. 3, 4, 5, 7, 8, 10 and 15).
“Point III. Whether or not the Lower Court, when finding that the Plaintiff was entitled to rehabilitation, properly considered the financial worth of the Defendant, the contributions of the Plaintiff towards the marriage, and the needs of the Plaintiff, in allowing the Plaintiff the meager sum of One Thousand Five Hundred Dollars ($1,500) as a lump sum alimony when, by the Defendant’s own testimony, he is worth as much as One Hundred Fifty Thousand Dollars ($150,000). Plaintiff’s Assignments of Error Nos. 1, 2, 6, 9, 11, 12 and 14).
“Point IV. Where the Chancellor assumes complete charge of the Plaintiff’s case and interrogates witnesses to exclusion of counsel and by his questions permits introduction of incompetent testimony and privileged communications between doctor and patient, does such conduct constitute reversible error. (Plaintiff’s Assignments of Error Nos. 13 and 16).”

In its consideration of these questions the court did not have the benefit of an appendix to appellant’s brief, as required ¡by Florida Supreme Court Rule 31 and Rule 36.6(e), 31 F.S.A. The record-on-appeal, consisting of the original record in the circuit court, including the transcribed testimony, is 239 pages in length, of which the testimony consumes 204 pages.

If an appellant fails to file and include an appendix with his brief or wilfully fails to include in his appendix sufficient matter to enable the Appellate Court to arrive at a decision, the court is not obligated to resort to the record-on-appeal to decide the case. In Bolick v. Sperry, Fla.1955, 82 So.2d 374, 376, a warning to this effect was sounded by the Supreme Court, speaking through Mr. Justice Se-bring, as follows:

“However, we think it only fair, in connection wtih the above statement, to sound a note of warning to an appellant who elects to come here with an appendix that does not completely support his case. Under our system of procedure the burden is always upon the appellant to make reversible error clearly appear. Therefore, the duty rests upon the appellant to include in the appendix to his brief such parts of the original record as will demonstrate to the court, without resort to the record-on-appeal, that error requiring reversal of the judgment or decree appealed from has been committed in the court below. For, as is made plain by the wording of Rule 31, ‘appeals will be heard and determined on assignments of error, appendices and briefs filed in accordance with the rules,’ and ‘the record-on-appeal will be referred to [only] when necessary to settle material conflicts between the parties.’ Under this rule the Court will feel under no obligation to resort to the record-on-appeal to decide a case merely because the appellant has wilfully failed to include in his appendix sufficient matter to enable the Court to arrive at a decision, nor will the appellee be under any obligation to supply such deficiency by including in his appendix matter that should have been included in the appendix of the appellant.”

It should be noted that in this opinion we are dealing with Florida Supreme Court Rules which were in use prior to July 1, 1957. As of that date new rules became effective, designated Florida Appellate Rules, of which Rule 3.3, Rule 3.7, subd. f(5), Rule 3.7, subd. g(4) and Rule 3.7, subds. h & j deal with the matter of appendices.

The appellant has not sustained her burden of showing error on the part of the trial court, and the final decree appealed from hereby is affirmed.

Affirmed.

HORTON and PEARSON, JJ., concur.


text:
    Edgar Addison IGLEHEART, Petitioner, v. CITY OF MIAMI BEACH, Respondent.
    No. 57-138.
    District Court of Appeal of Florida. Third District.
    Oct. 15, 1957.
    Eli Breger, Miami Beach, and Harvey J. St. Jean, Miami, for petitioner.
    Joseph A. Wanick, Miami Beach, for respondent.
   PER CURIAM.

This cause came before the court upon a petition for writ of certiorari. The Court, after reviewing the file, notes that the petitioner seeks to have reviewed a judgment of the 'Circuit Court of Dade County, Florida, dated May 27, 1957, and that the petition was not filed until August 16, 1957. More than 60 days having lapsed between the date of the order to be reviewed and the date of filing the petition, it is therefore ordered that, pursuant to Florida Appellate Rule 4.5, subd. c, the petition for writ of certiorari is hereby dismissed.

CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.


text:
    William R. SPELLMAN, Petitioner, v. Henry BRADY and Hazel Brady, his wife, Respondents.
    No. 57-173.
    District Court of Appeal of Florida. Third District.
    Oct. 15, 1957.
    Albion & Greenfield, Miami, for petitioner.
    Kessler & Gars, Miami, for respondents.
   PER CURIAM.

This cause having heretofore been submitted to the Court on petition for writ of certiorari upon the transcript of record and briefs to review the order of the Circuit Court, and it having been considered, it is ordered by the Court that said petition be and the same is hereby denied.

CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.