Sarasota Ice, Fish & Power Co. v. Lyle & Co.
Sarasota Ice, Fish & Power Co. v. Lyle & Co.
Opinion of the Court
The appeal in this case is presented here for the second time. For the opinion on the former appeal see Sarasota Ice, Fish & Power Company v. Lyle & Company, 53 Fla. 1069, 43 South. Rep. 602, wherein will be found a statement of the facts. As is stated therein, the final decree from which the appeal was entered had to be reversed for the reason that it appeared that the court had never acquired jurisdiction of the person of S. D. Futch, one of the appellants, although a decree pro confesso had been entered against him, such appellant being affected by the final decree and therefore a necessary party. We also called attention to the fact that it appeared that an order of reference had been made before all the issues had been properly made up. On the case being remanded, S. D. Futch voluntarily came in, waived the service of a subpoena upon him and filed an answer whereby he virtually admitted the allegations of the bill in so far as they concerned or affected him. The issues were all properly made up and the court thereupon made an order referring the cause to O. K. Eeaves, a practicing attorney, as special master, to take the testimony therein and report the same to the court, without his findings and conclusions. Such special master was the same person to whom such cause had been previously referred, only in the first order he seems to have been directed to make and report findings and conclusions. After the making of the second order of reference, the complainant, who is the appellee here, filed a motion, due notice of the time and place of the hearing thereof being given to the defendants, reciting therein the fact of the appearance and answer of Futch, the taking of the testimony by the same master, that the issues had not been changed and that it would be a great saving of time and expense to use such testimony so previously taken, wherefore an order was sought from the court directing such
Twenty-three errors have been assigned by the appellants, practically all of which are insisted upon and argued. Voluminous briefs, including a reply brief by the appellants, have been filed by the respective parties, and we have also had the benefit of oral arguments from their respective counsel. The appellants lay great stress upon the evidence in support of their different contentions and quote extensive extracts therefrom in their
Petition tor rehearing in this case denied.
Reference
- Full Case Name
- Sarasota Ice, Fish & Power Company, a corporation v. Lyle & Company, a corporation
- Cited By
- 15 cases
- Status
- Published
- Syllabus
- 1. While the findings and conclusions of a chancellor, where the testimony is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witness, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous. 2. In equity, as well as at law, every.presumption is in favor of the correctness of the ruling of the trial judge, and a final decree rendered by him based largely or solely upon questions of fact will not be reversed, unless the evidence clearly shows that it was erroneous. 3. Where a final decree is reversed upon appeal because the trial court had never acquired jurisdiction of the person of one of the appellants, who is a necessary party, and upon ,such case being remanded, such party voluntarily comes in and files an answer whereby he virtually admits the allegations .of the bill in so far as they concerned him, and such cause is referred to the same master to take the testimony therein to whom it had previously been referred, and the complainant files a motion, reciting therein such above stated facts and alleging that the issues had not been changed and that it would be a great saving of time and expense to use such testimony so previously taken, whereby an order is sought directing such master to mark and file all the testimony previously taken by him, “including all exhibits, depositions, oral testimony taken and reduced to writing by him,” and that he report the ■same, without delay, to the court for further consideration, no error is committed by the trial court in granting such motion, due notice of the time and place of the hearing thereof having been given to the defendants, who are not shown to have interposed any objections or offered any opposition thereto, but who subsequently sought and obtained an order allowing them additional time to take further testimony, and did take such testimony. 4. An assignment of error that “the court erred in adopting and making a part of its final decree the master’s unauthorized finding and conclusion of fact and law as set forth and made a part of said final decree” is without force, when it is satisfactorily shown how such master’s report happened to be before the court and the decree does not recite that such findings and conclusions were adopted and incorporated therein. Even if the court did so adopt and incorporate them, no error was committed thereby, provided they were warranted and supported by the evidence.