MARY EAGLE
v.
H. H. CARR
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A Florida Supreme Court decision addressing procedural defects in a partnership dissolution and accounting suit where the defendant died during pendency. The court reversed the lower court's dismissal and other orders for lack of proper notice and failure to follow statutory revival procedures.
The lower court's orders were improper because they were entered without proper notice and hearing, violating due process and orderly procedure. Upon the death of the defendant, the suit abated under Florida law, making all subsequent proceedings void. The court must reverse and direct the trial court to accept proper application to revive the suit and then proceed in an orderly fashion.
“Due process, as well as orderly procedure, contemplates that notice should have been given and the parties allowed to be heard before the challenged orders were entered.”
Establishes the fundamental requirement that the lower court violated by entering orders without notice and hearing
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Join FLexlaw to unlock all legal intelligenceThe parties had formed a partnership and acquired several properties as partnership assets. The plaintiff sued to terminate the partnership and obtain…
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The purpose of this suit was to terminate a partnership between the parties and have an accounting. There appears little question about the partnership having existed and the several properties described having been acquired as partnership assets. Defendant answered that prior to suit, a full settlement had been made and accepted by plaintiff. The cause was referred to a master who made findings and recommendations in favor of plaintiff. The master’s report was filed July 24, 1942. On July 27, next, plaintiff filed a request *225for a receiver of the property because of defendant’s death on June 13, 1942. This petition was supported by proof of the death. On August 3rd, the court appointed a receiver. August 6th, the attorney who had represented the defendant filed exceptions to the master’s report. On November 30th, the court overruled the exceptions but declined to enter final decree until the cause was revived because of defendant’s death. December 12th, plaintiff filed a suggestion of death and prayed for the appointment of an administrator ad litem. December 14th, the court dismissed the cause and ordered the master’s fee to be paid by each party equally. On December-31st, plaintiff challenged the latter order by petition for rehearing upon the ground that the cause had not been revived and the court had acted of its own motion and without notice to plaintiff or her attorney and too, that the order was contrary to the master’s findings and the weight of the evidence. January 4th, the acourt discharged the receiver and on January 19th following, the court reinstated the cause for the purpose of decreeing the equities with defendant on his counterclaim, dismissing the bill and assessing all the cost against plaintiff. The plaintiff challenged the latter order because of lack of notice and no revival of the cause.
Lest we fall into the same error as the lower court, we will refrain from discussing the merits and confine our decision to the regularity of the proceedings, without a revivor as to the party defendant. So far as the record shows the challenge to the several orders for want of proper motion and pursuant to notice was well founded. Due process, as well as orderly procedure, contemplates that notice should have been given and the parties allowed to be heard before the challenged orders were entered.
Upon the death of defendant however the suit abated and all proceedings thereafter were of no effect. Sec. 63.19, Fla. Stat. 1941. Worley, et al., v. The Dade County Bank, 52 Fla. 666, 42 So. 627. Sec. 59, Florida Chancery Pleading and Practice by Kooman and Equity Rule 38.
The decree appealed from is reversed with directions to entertain proper application to revive the suit and then pro*226eeed in an orderly fashion to determine the subject matter of the suit.
Reversed.
BUFORD, C. J., TERRELL and CHAPMAN, JJ., concur.
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Cavalier v. Ignas, 290 So. 2d 20 (Fla. 1974)…view upon petition for writ of certiorari alleging conflict between the instant decision of the Third District Court of Appeal at 275 So. 2d 293, and the cases of Western Union Telegraph Co. v. Suit, 153 Fla. 490, 15 So. 2d 33 (1943); Eagle v. Carr, 153 Fla. 224, 14 So. 2d 268 (1943) and Burton v. Walker, 231 So. 2d 20 (Fla. App.2d 1970). As will later appear, conflict exists with these cases, and we have jurisdiction pursuant to Art. V, § 3(b)(3), Fla.Const, F.S.A. Petitioner and respondent entered into a…
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Nystrom v. Nystrom, 105 So. 2d 605 (Fla. 2d DCA 1958)…edure, contemplates that notice and a full and fair opportunity to be heard should be given each party before any significant step is taken in the proceedings in a cause. Ryan’s Furniture Exchange v. McNair, 120 Fla. 109, 162 So. 483; Eagle v. Carr, 153 Fla. 224, 14 So. 2d 268; Feuer v. Feuer, 156 Fla. 117, 22 So. 2d 641; Atlantic Coast Line R. Co. v. Lake County Citrus Sales, Fla. 1950, 48 So. 2d 922; Dykes v. Dykes, Fla. 1954, 71 So. 2d 171. Whatever the situation formerly, it is not now to be doubted th…
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In re Est. of Adah Reed Hollenbeck v. Brinson, 137 So. 2d 854 (Fla. 3d DCA 1962)…314, 70 S.Ct. 652, 94 L. Ed. 865, 873. Compare Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178; Nystrom v. Nystrom, Fla.App.1958, 105 So. 2d 605, 609; Valdosta Milling Co. v. Garretson, Fla.1951, 54 So. 2d 196; Eagle v. Carr, 153 Fla. 224, 14 So. 2d 268; Redman v. Kyle, 76 Fla. 79, 80 So. 300, 304; Fraser, Actions in Rem, 34 Cornell L.Q. 29, 41 (1948).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Worley v. The Dade Cnty. Sec. Co., 52 Fla. 666 (Fla. 1906)