Gamble v. Gamble Holding Corp. , 120 Fla. 340 ( 1935 )

The succinct but very clear statement of the controversy between the parties to this litigation, as made in the "PER CURIAM" opinion, I accept as, sufficient.

The difference of opinion between the members of the Court seem to grow out of the probative force of the evidence adduced and the procedure adopted to present the questions to this Court for adjudication.

The bill filed on May 26, 1932, in the Circuit Court for Duval County was to vacate and set aside and declare null and void the decree entered by the Chancellor on May 11, 1931, "and/or that said Final Decree may be set aside, reversed or modified according to the equities of the parties hereto, both complainant and defendants."

The bill was filed without leave of court.

It seeks to set aside the former decree on grounds of fraud alleged to have been perpetrated by solicitors for defendants in suppressing certain information in their possession relating to an affidavit made in behalf of Robert Gamble and filed in the Internal Revenue Department in Washington which it is claimed would establish the sale of the twelve hundred and fifty shares of the capital stock of the Georgia Ice Company to Edward S. Gamble, the complainant in both cases.

The bill cannot be treated as one to review evidence or error appearing in the body of the decree, or to examine any new matter which has arisen after the decree and could not have come to light and been used at the time the decree was entered because such a bill would be in the nature of a bill of review which would require the special permit of the court. See Adler v. Superior Apartments Corporation, 119 Fla. 127, 160 South. Rep. 868; Miami Bank Trust Co. v. Mahlstedt, 107 Fla. 282, 144 So.2d Rep. 659.

It is merely an original bill to impeach a decree alleged to have been obtained by fraud.

The jurisdiction of the court to set aside decrees obtained by fraud on an original bill for that purpose has long been unquestioned. Sec. 3 Ency Pl. and Prac. 608.

The character of bills such as the one filed in this case is sometimes called an original bill in the nature of a bill of review. In its essential features, however, it is an original and independent proceeding. It is a matter of right and may be filed without leave of the court, either for fraud in fact or fraud in law. 3 Ency. Pl. and Prac. 610.

The fraud in all such cases of the kind is the principal point in issue and must be established by proof before the propriety of the decree can be investigated. Where the fraud is established the court will restore the parties to their former situation, whatever their rights may be. 3 Ency. Pl. and Prac. 611.

The question as to the character of the bill goes to the very jurisdiction of the court, because if it is merely a bill in the nature of a bill of review it may not be entertained without consent of the court expressly given for the purpose and in that proceeding the evidence theretofore received is reconsidered and argument upon it heard again. It is a mere continuation of the former proceeding, but where it is an independent case brought of right to attack a decree alleged to be procured by fraud, the burden is upon the complainant to maintain a high degree of certainty both in the matter of allegations and proof as to the fraud set up as the basis for the relief sought.

I do not agree that the Chancellor or this Court has the power to brush all such questions aside and proceed to administer what is sometimes called substantial justice according to the merits as the record discloses.

The administration of justice proceeds orderly and according to rule and when the rules are observed and accurately applied justice according to the best standard which man is capable of setting up is usually attained. When the old and age-tried standards are ignored and in place of them some judge's notion of natural or substantial justice is substituted miscarriages of human justice are more apt to occur.

The bill of complaint in the first suit sought to declare the title and ownership of twelve hundred and fifty shares of the capital stock of the Georgia Ice Company represented by certificate No. Nine, and three shares of the capital stock of the same company represented by Certificate No. Five to be in the complainant, Edward B. Gamble. The burden which was upon the complainant to establish that fact was not carried successfully, so the Chancellor decided. The complainant appealed. The appeal was dismissed without prejudice. So the decree of the Chancellor stood as rendered.

A year later the bill in the instant case was exhibited by the complainant to impeach the decree for fraud as stated.

Neither the allegations of the bill nor the evidence adduced to support it establish the existence of fraud in obtaining the decree with that degree of clearness and certainty required of causes in equity undertaking to set up fraud as the basis of relief sought. See Skinners v. Hulsey, 103 Fla. 713, 138 South. Rep. 769. Such at least was the view entertained by the chancellor from an examination of all the evidence adduced in the cause.

The question for us to determine in the cause is whether the appellant has made error in such finding clearly to appear. It is impossible to legally declare from the record that error clearly appears in the Chancellor's findings.

It is true that the affidavit of A. M. Dixon, as attorney in fact for Robert Gamble, made and filed in the Department of Revenue at Washington showed that the 1250 shares of capital stock had been transferred by R. W. Gamble to his son Edward at the date stated, but the explanation given of its subsequent transfer to Gamble Holding Corporation appears not to have been tainted with fraud. On the other hand it seems to have been in the Chancellor's view most reasonable and proper.

The lack of the elements of fraud cannot be supplied by vituperation, wordy abuse of the assumed improper conduct of opposing counsel. If it were true that Mr. Gamble caused the shares of stock to be transferred to his son as of January, 1923, they may have been re-transferred to him or to the Gamble Holding Company because of a clearly sufficient reason, like, for instance, the inability of the transferee to ever pay for them; or, if they were transferred to avoid a debt to the United States Government, and the complainant participated in the enterprise, equity would leave the parties where it found them.

In any event it cannot be said that the defendants' solicitors perpetrated a fraud by not revealing the transaction of the first transfer of stock and the complainant's participation in it for the alleged purpose of avoiding an income tax by Robert Gamble.

The three shares of stock originally transferred to the complainant and represented by Certificate No. 5 seem to have been lost sight of by all parties and the Chancellor. The first decree held that there was only a colorable transfer of those shares to the complainant. If we were reviewing the first decree we would be constrained to hold that such transfer was a legal and sufficient one to vest the title in the complainant. They were transferred to him in order to qualify him to hold an office in the corporation that it might avail itself of his services. If such is the case it was a sufficient consideration and in equity and good conscience the same should be redelivered to him, but that point is not reviewable in this case.

I think, therefore, that the decree should be affirmed.

BROWN, BUFORD and DAVIS, J. J., concur.

WHITFIELD, C. J., concurs specially.