NOBLE W. HARISON AND WILLIAM H. HARISON, APPELLANTS,
v.
OCALA BUILDING AND LOAN ASSOCIATION AND W. W. CLYATT, APPELLEES
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The Florida Supreme Court dismissed an appeal filed by stockholders of a building and loan association in receivership because necessary parties to the original proceeding below were omitted from the appeal. The court held that where a receiver has been appointed and an adversarial relationship exists between stockholders, all parties with joint interests must be properly represented on appeal or the appeal must be dismissed.
The court held that the appeal must be dismissed because Clarkson and Delouest, who were active parties below with joint interests in the receivership proceedings, were not brought before the appellate court either in person, by representation, or by voluntary appearance. The court cannot enter a decree that might affect their joint interest without their presence.
“Had the association been a going concern, not in the hands of the court, the only necessary parties to a proceeding to enforce the restitution of a stockholder's status would'have been the stockholder and the corporation, as the latter would stand as the representative of ail its stockholders. There is now however an adversary-relation created by the filing of the stockholder's bill and it cannot be said that the association now represents Clyatt, Clarkson and Delouest”
Establishes that the appointment of a receiver and adversarial stockholder proceeding changes which parties are necessary to an appeal.
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Join FLexlaw to unlock all legal intelligenceNoble W. Harrison and William H. Harrison filed a dependent original bill in circuit court challenging the forfeiture and sale of their stock by the O…
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Cockrell, J.:
By leave of court the Harisons filed in the Circuit Court for Marion county what they term their “dependent original bill of complaint” against W. W. Clyatt, Jr., H. B. Clarkson, Amadee E. Delouest, the Ocala Building and Loan Association, a corporation, and Gordon W. Scott, as secretary of the association. The affairs of the association were then being administered in that court through its receiver upon a stockholder’s bill brought by Clyatt, Clarkson and Delouest for themselves and others who might come in.
This “dependent original bill” was filed upon the theory that certain stock which these appellants claimed had been-illegally forfeited and sold by the association for non-payment of dues assessed thereon, after the stock had been listed for withdrawal. The bill seeks by specific interrogatories to charge Clyatt and Clarkson with guilty knowledge of the ownership, in the Harisons when as directors of the association they voted to sell the stock without notice to the real owners; the prayers are for restoration to the status of stockholders, an accounting and a sharing in the assets.
Answers were filed by the association and in the name of Clyatt, Clarkson and Delouest, though signed only by Clyatt and Clarkson; no point is made on the failure of Delouest to sign. There was replication and much evidence taken. Upon final hearing the court found the issue of “listing for withdrawal” against the Harisons who entered their appeal making as parties thereto only the association and Clyatt.
A motion was made here to dismiss the appeal for want of necessary parties. The time for suing out a new appeal had expired before the return day and the question of parties presenting considerable difficulty, it was reserved for the hearing upon the merits.
Had the association been a going concern, not in the hands of the court, the only necessary parties to a proceeding to enforce the restitution of a stockholder’s status would'have been the stockholder and the corporation, as the latter would stand as the representative of ail its stockholders. There is now however an adversary-relation created by the filing of the stockholder’s bill and it cannot be said that the association now represents Clyatt, Clarkson and Delouest, nor can it be that Clyatt fully represents his co-complainants Clarkson and Delouest — the mere chance that his name comes first gives him no superior rights over the others.
In the case of Jacksonville, M. & P. Ry & Nav. Co. v. Broughton, 38 Fla. 139, 20 South. Rep. 829, we recognized the rule that it is not necessary to an appeal to name all intervenors who may have come into the case, but there we Lad before us the parties to the original bill, and aR who were jointly interested in a severable appeal.
There are cases also which hold that a formal, even a necessary, party to the bill in its inception may by subsequent events be properly omitted from the appeal where the court can say that no decree it can render can possibly affect that party.
From' this appeal are omitted Clarkson and Delouest, who shared in the brunt of going into the court for the purpose of winding up the building and loan association, and it is probable that a reversal of the decree appealed from would result in an actual loss to them by diminishing pro tanto the dividends they would otherwise receive from the assets now being administered.
Having been active parties below, and not having been brought here by appropriate proceedings either in person or by representation and not having appeared here voluntarily, we would not be authorized to enter any decree that might affect their joint interest and the appeal presenting no several features which we can pass upon with the parties before us, there remains nothing for this court but a dismissal. Tlie motion is, therefore, granted and the appeal is dismissed.
Shackleford, C. J., and Whitfield, J., concur;
Taylor, Hocker and Parkhill, JJ., concur in the opinion.
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Willey v. W. J. Hoggson Corp., 90 Fla. 343 (Fla. 1925)…al in his name. When parties having a joint interest in the subject matter of litigation are not properly before the court the appeal will be dismissed. See Sherlock v. Couper, 43 Fla. 51, 29 South. Rep. 444; Harison v. Ocala Building & Loan Ass’n, 52 Fla. 522, 42 South. Rep. 696; Jones v. Miller, 77 Fla. 297, 81 South. Rep. 413; Andre v. Jones Inv. Corp., 84 Fla. 488, 94 South. Rep. 158. The motion to dismiss the appeal is therefore granted. West, C. J., and Whitfield, Terrell, Strum and Brown, J. J.,…
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State of Fla. ex rel. Inv. Corp. OF S. Fla. v. Bd. OF Bus. Reg. of the State of Fla., 227 So. 2d 674 (Fla. 1969)…rectly and substantially interested in an order sought to be reviewed must be made parties to the appeal.The refusal or failure to do so denies those interested and not made parties due process of law. Harison v. Ocala Building and Loan Association, 52 Fla. 522, 42 So. 696 (1906); Nichols and Johnson v. Frank, 59 Fla. 588, 52 So. 146 (1910); and Headley v. Lasseter, 147 So. 2d 154 (Fla.Apps. 1962). It is stated in Tibbetts v. Olson, 91 Fla. 824, 108 So. 679 (1926), “The Constitution is designed to prescr…
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Rawls v. Carlton, 56 Fla. 843 (Fla. 1908)…are mot set up, we do not know to what extent, if any, the rights and interests of the Consolidated Land Company are affected by the order appealed from. Under such circumstances the appeal must be dismissed. Harison v. Ocala Building & Loan Ass’n., 52 Fla. 522, 42 South. Rep. 696; Ferris v. Ferris, 43 Fla. 358, 31 South. Rep. 345; Witt v. Baars 36 Fla. 119, 18 South. Rep. 330; Sarasota Ice, Fish & Power Co. v. Lyle, 53 Fla. 1069, 43 South. Rep. 602. Taylor and Parichill, JJ., concur; Shackleford, C. J.…
Authorities Cited
- Jacksonville v. Broughton, 38 Fla. 139 (Fla. 1896)