BEACH RESORT HOTEL CORPORATION, A FLORIDA CORPORATION, AND ABRAHAM ROSEN, PETITIONERS,
v.
BERNARD R. WIEDER, JOSEPH AMIGO, YETTA ROSEN, PALWI, INC., AND MAX OROVITZ, AS RECEIVER, RESPONDENTS
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Beach Resort Hotel Corporation and Abraham Rosen sought rehearing after the Florida Supreme Court affirmed a Circuit Court order requiring compliance with the Court's mandate in a case involving concurrent jurisdiction between bankruptcy and state courts. The Court reaffirmed that state courts retain jurisdiction over matters arising from common-law rules or statutes other than the Bankruptcy Act, and that lower courts must comply with appellate mandates.
The Court held that bankruptcy and state courts have concurrent jurisdiction over rights and liabilities relating to particular assets governed by common law or statutes other than the Bankruptcy Act, with the tribunal first obtaining jurisdiction retaining it exclusively. The Court further held that the Circuit Court was required to comply with the Supreme Court's mandate and that the Supreme Court would not quash an order entered in compliance with its mandate.
“In the determination of the rights and liabilities of the bankrupt and third persons with relation to particular assets or other matters which arise out of, and are governed by, common-law rules or statutes other than the Bankruptcy Act [11 U.S.C.A. § 1 et seq.], bankruptcy and state courts have concurrent jurisdiction, and the general rule, * * * to the effect that 'the tribunal which first obtains, jurisdiction of the matter retains it exclusively has been applied.'”
Establishes the fundamental principle that state and bankruptcy courts have concurrent jurisdiction over matters arising from non-bankruptcy law, with the first court to obtain jurisdiction retaining exclusive authority.
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On Petition for Rehearing
O’CONNELL, Justice.
The petitioner asserts, by petition for rehearing in this cause, that the order of the bankruptcy court quoted in the original opinion was directed only to a specific and limited point in issue between the parties to this cause before the lower court. Conceding (upon a consideration of the matters reflected by the records in prior appearances of the cause here, but brought to the attention of the Court in the instant certiorari proceeding for the first time by petition for rehearing) that the order referred to did not constitute a relinquishment by the bankruptcy court of authority over the entire controversy, it still appears that the first question posed must be answered in the negative.
The fundamental problem is whether, under the circumstances, the bankruptcy proceeding superseded the pending litigation in the state courts so as to require that such litigation be immediately terminated and the properties or funds in receivership surrendered. The Act has certainly never been construed to permit a summary termination of any and all suits in other courts of which they had, at the time of a bankruptcy petition by one of the parties, full cognizance. Eyster v. Gaff, 91 U.S. 521, 23 L.Ed. 403. The prevailing rule is expressed as follows:
“In the determination of the rights and liabilities of the bankrupt and third persons with relation to particular assets or other matters which arise out of, and are governed by, common-law rules or statutes other than the Bankruptcy Act [11 U.S.C.A. § 1 et seq.], bankruptcy and state courts have concurrent jurisdiction, and the general rule, * * * to the effect that 'the tribunal which first obtains, jurisdiction of the matter retains it exclusively has been applied.” 8 C.J.S., Bankruptcy, § 29, p. 446.
There is no inconsistency between this principle and the acknowledged exclusive jurisdiction of the bankruptcy court over the affairs of the bankrupt as such. Herman v. Cullerton, 9 Cir., 13 F. 2d 754; Shrewsbury v. Reynolds-Morse Corp., 105 Colo. 30, 94 P. 2d 686. Cf. First Nat. Bank v. Zangwill, 61 Fla. 596, 54 So. 375; Kelley v. Lassister, 150 Fla. 118, 7 So. 2d 458.
A review of the cases involving application of% the above cited rule will plainly sustain the action of the court below in the entry of its order on mandate. Bryan v. Speakman, 5 Cir., 53 F. 2d 463, certiorari denied 285 U.S. 539, 52 S.Ct. 312, 76 L.Ed. 932; In re Couch Cotton Mills Co., D.C.Ga., 275 F. 496; Park v. Stryker, 8 Cir., 6 F. 2d 457; In re Brinn, D.C.Ga., 262 F. 527; Redmon v. Witt, 6 Cir., 9 F. 2d 36; Dayton Coal & Iron Co., D.C.E.D.C.Tenn. 1922, 291 F. 390, 1 A.B.R.,N.S., 434. Remington on Bankruptcy, 3rd. ed., Vol. V., Sec. 2042, et seq.; Collier, 14th ed., Vol. I, Secs. 2.63, 11.02.
There is another reason why we will not quash the order on mandate issued by the Circuit Court.
Even if the bankruptcy court could have done so, which we doubt, it did not by its injunction, enjoin either the Circuit Court or this Court from proceeding to decide the case then before it.
When our opinion was filed and our mandate went down the Circuit Court had no right to ignore it. On the contrary that court had a duty, under the mandatory direction contained therein, to comply therewith. State v. Sarasota County, 118 Fla. 629, 159 So. 797, 799. Had the Circuit Court not complied with the mandate, we could have, under our continuing jurisdiction of this cause, required the Circuit Court to enter the decree as we directed in our opinion and mandate in this cause, reported in 79 So. 2d 659. State v. Citrus County, 117 Fla. 792, 158 So. 705, 707.
We will not quash an order of a lower court entered in compliance with a mandate issued by this Court. Nor do we believe that comity requires us to do so.
For the additional reasons expressed herein we adhere to our opinion reported in 83 So. 2d 863, and deny the petition for rehearing'.
DREW, C. J., and THOMAS and THORNAL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Berger v. Leposky, 103 So. 2d 628 (Fla. 1958)…appellate court is thereafter required to permit presentation of new matter affecting the cause. State ex rel. Dowling Co. v. Parks, 99 Fla. 1264, 128 So. 837; Hunter v. Kearley, 155 Fla. 222, 19 So. 2d 788; Beach Resort Hotel Corp. v. Wieder, Fla., 90 So. 2d 52; State ex rel. Mortgage Inv. Foundation, Inc., v. Knott, Fla., 97 So. 2d 265. The entry of the mandate in question therefore, in practical effect, left the litigation in a status equivalent to that where a peremptory writ had issued in a mandamus pr…
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Metro. Dade Cnty. v. Klein, 229 So. 2d 589 (Fla. 3d DCA 1969)…5. Upon remand of a cause the trial court must carry [*591] out the mandate of the appellate court a manner consistent with the law applicable to the case and the directions of the appellate court. Beach Resort Hotel Corporation v. Wieder, Fla.1956, 90 So. 2d 52. A review of the record now before us fails to demonstrate that the circuit court departed from the foregoing principle. One additional point raised by the County should be mentioned. It urges that because of the principles set forth in Nichols v.…
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Hollywood, Inc. v. Broward Cnty., 108 So. 2d 752 (Fla. 1959)…riety of the purchase but only with the method chosen to pay for the property. It was concluded that the order dismissing the complaint was error for the reason that the allegations of the pleading presented a case for rescission “unless and until” [90 So. 2d 52] the plan for deferred payments had been approved under the .provisions of Sec. 6 of Art. IX, supra. And so, back to the circuit court went the cause for further proceedings. This was in November 1956. Meanwhile, in September 1956, the County Comm…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Eyster v. Gaff, 91 U.S. 521 (U.S. 1875)
- Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931)
- State v. Cnty. of Sarasota Case No. 1. (Road & Bridge Refunding Bonds, 118 Fla. 629 (Fla. 1935)
- Beach Resort Hotel Corp. v. Wieder, 79 So. 2d 659 (Fla. 1955)
- Lowenstein in Bankruptcy v. Reikes, 285 U.S. 539 (U.S. 1932)
- State v. Cnty. of Citrus, 117 Fla. 792 (Fla. 1935)
- Wright v. United States, 285 U.S. 539 (U.S. 1932)
- Beach Resort Hotel Corp. v. Wieder, 83 So. 2d 863 (Fla. 1955)
- Redmon v. Witt, 9 F.2d 36 (6th Cir. 1925)
- Kelley v. Lassiter, 150 Fla. 118 (Fla. 1942)