# State v. Florida Central Railroad

> Supreme Court of Florida · June 15, 1876 · 15 Fla. 690

URL: https://www.frixlaw.com/law-library/cases/4913394

## Case

- **Full name:** The State of Florida and the Trustees of the Internal Improvement Fund of the State of Florida v. The Florida Central Railroad Company, Edward M. L'Engle, Robert J. Washington and Fannie S. Papy, of the Last Will and Testament of Mariano D. Papy
- **Court:** Supreme Court of Florida
- **Decided:** June 15, 1876
- **Citations:** 15 Fla. 690
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Westcott
- **Judges:** Westcott
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4913394

## Opinion text

WESTCOTT, J.,
delivered the opinion of the Court.
.The appellants in .this case, looking to the assignment of ■errors and . the. parties;-named:.upon- the,; .calendar,, . are the *692 Florida Central-Railroad Company, Edward*'M.- L’Engle, Fannie S. Fapy, executrix of the last will and .testament-of Mariano D. Papy, • deceased, and Robert J. Washington. ¥e consider the appeals in the order stated. -
The plaintiff, the State of . Florida,;has in-possession one thousand bonds of one thousand dollars each, bearing the seal of the Florida Central Railroad Company,: of-the following tenor and date: ■
”“No; J — -, $1,000,’ United' States óf America, 'State’of Florida. Bond of the' Florida' Central Railroad Company.
“ Know all mén by-thesé pi’eisehts, ’that* the' Florida Cé'xitral Raih’oad Company acknowledges itself indebted to the State of Florida in' the stun-' of one thousand dollars for value received, which sum the Florida- Central Railroad •Cóítípany' promises and agrees to pay totbe:State-of Florida on the first day of January A.’ D. nineteen ‘húndred,’ in the city of Néw York, With interest thereon’’ at the -rate- of-eight per centum per annum, payable semi-annually on the first days of Jxxly and-January in each-year, on the presentation and ' delivery óf' the proper coupons heréuntó ’attached.” This bond-is-one of'a s'eriesof 1-iketexxoxy limited-to sixteen thousand dollars per milé; ’ issued in accordance with' an act of the Legislature of the State of Florida-,' approved January 28th, eighteen hundred and seventy, ’-entitled’an aet to alter hud amend “ an -act entitled an act to. perfect’ the -public worksof ihe’State,” approved’ June YJth,'eighteen hiiindred and sixty-nine, and'given in exehange for bonds issued by the State ■ ofFloxida* to: aid - the 'Jacksonville,. Pensacola and Mobile1 Railroad Company tomompléfcep equip ándmaita,tain- its road for án Uqual axnountpin accordance with said act.
“ In witness' whereof* the ■ said • *”company: has ’ caused? this bond'- to he éigfied - and- attest eddni its’¡behalf byits*Presidenf, and the common seabaffixedat itS'ófíicein -A'--J.¡--gtHig'first day of January^ in1 thé’-¡year 18JO';-/--.:íx?-eí. oik xnvásh?
’-'“■Gaoi'W.''SiVEPSdiir,;Pffesid!enf?n
“ H. H. Thoxmepson, Treasurer.” .. -•■E ..yumy.vo:>
*693 " To which bond is'attached the coupons* authorized fey the statute hereinafter referred to. ■ •• ■' ■ • ■ ■
This action was instituted by the State' in’March, 1872, to subject the property arid franchises of this company to sale, .the State'alleging in ' its1 amended complaint*, by which defendant was riiade a party,1 that the company had failed to __pay any of the interest due upon *the bonds.'* The defendant in argument denies that the allegations* óf the-complaint *‘set up an execution of these bonds by the company, and affirms that such allegation is necessary, to sustain . the decree. "Without stating in detail all of the allegations in reference to this subject, scattered as they are through a complaint of twenty-eight printed pages, we will say that from a careful .and accurate examination of - all the statements of the complaint upon this subject, there is such an allegation, and that the complaint also states, substantially; a sale of the State bonds which were issued-1 in exchange for ' the bonds of this company.- . .
■ The plaintiff claims, that .upon. this, ¡default it* was lawful for the State, through the Governor, to enter upon and take possession Of the, property and¡ franchises of .the company,, to sell the same and apply the proceeds in accordance with the provisions of. the statutes under .which ¡ it alleges the bonds were issued; and that,-this being a mortgage contract the remedy in equity ¡attaching to such; equitable relations was effective to. decree a ¡sale, and* an application of the proceeds to the holders of the*bonds of the. State.- • •*• • .. ...
- To this complaint the defendant in its163,-, •026.70, as well as for any “ subsequent advances that may be made ” against the one million of'bonds,T until sufficient, money may be realized from , the sa]e of said million of bonds formerly held by Mr. Houston, and it was agreed •that they might ‘ftake the bonds from''market and.return -them to the State.” When -it is .-remembered,. that tljis, firifr were, the-agents of the J. P, &M. Co., who,-had their-bonds in hand to sell-them,-the amount of this paper is .simply that in the event they made advances against thebne'piib flion they might pay themselves, from, the proceeds óf' sale. It does not prove.that they have made such advances, or that the bonds have been sold. , It. establishes .that t these bonds are in their, hands for sale, ordo secure-.advances .that may be made.”.,,, ., , ,. . ... . ■- , ...
- Exhibit N,, to'which importance. .is given by the plaintiff, •is.a, letter of M. ,S. Littlefield - to Si W. Hopkins & Co'., offering to sell them the entire, four million bonds authorized sto be issued by the State.,. It is as followss . ,, ,
*718 58'Old Broad Street, London, Nov. 14,’ 1870:
Messrs. S. "W. Hopkins &■ Co., London: ,
Gentlemen: I'herewith offer you 4,000 Florida' State-8 per cent gold bonds in aid of the Jacksonville, Pensacola, and Mobile Railroad Company for one thousand ($1,000} dollars gold each, at the price of one hundred (£100) pounds, sterling for each bond in the city of London, subject to theeommission agreed as per contract dated 13th day of April, 1870, with your good selves.
I remain, gentlemen, yours faithfully, ■
M. S. Littlefield, •
• J. P. & M. R. R. Co.
This is nothing more than an offer to sell these bonds, made a year before they were delivered to Coddington.. There is nothing to show that S. W. Hopkins & Co. made-such a purchase or took the bonds on these terms, or that they now hold this one million for any advances, or that any person has either paid or advanced money on these bonds to the J. P. & M. Co. This receipt to Littlefield, dated April 15, 1871, long after this letter in which they speak of subsequent advanees that may be made by them, shows that there was no sale to them.
Exhibit O is a resolution of the stockholders of the-Florida Central Company, passed May 13,1871, authorizing-E. Houstoun to place the bonds referred to in the preamble- and resolutions of the stockholders of the company, adopted June 2,1870, in the hands of S. ~W. Hopkins & Co. for the purpose mentioned in said resolution, subject to the same exceptions as therein expressed with- respect to the proportion thereof applicable to the stock owned by other parties and according to the terms therein- mentioned. This resolution, as a matter of course, does not show the present locality of the State bonds. Exhibit M, as we have, before-seen, shows the condition of the bonds, long after this resolution, in the hands of S. ~W.. Hopkins & Co., and it is unnecessary to repeat here what has been said in that eoncention.
*719 The plaintiff insists that exhibit E, which is .la deed of trust executed by the President of the J.. P. & M. E. E.. Co. to D. Q-. Ambler, F. H. Flagg and C. L. Chase, on the -2d of October, 1871, shows the sale of these bonds by,the J. P. & M. Co. The President of this company, by their deed, inconsideration of a contract by the Florida Construction Company to construct the road westward, from Quincy to Mobile, conveyed to the parties named in trust for. the period of two years the rolling stock and equipments, &e., of the road, as well as the franchises incident and necessary for the operation of the road. While we think that the recitals in such a deed are not evidence against the Florida Central Eailroad Company, an. entire stranger to the instrument, (and indeed this objection is applicable to many of these exhibits,) yet these recitals do not show a sale of the one' million of bonds, when construed with the testimony of Chase, one of the trustees named in; the deed, and Gollinson and Coddington. To this testimony we refer subsequently, and here only examine these recitals. ’ The1 deed recites that the Jacksonville, Pensacola and Mobile Company has received from the State of Florida certain bonds; that this company is responsible for the payment of the interest on these bonds, and makes it the duty of the trustees to pay this interest under certain circumstances. The party of the first part transfers the proceeds arising from the negotiation and sale of the before-mentioned bonds yet to be received, and which are now on deposit in London, to the receipt whereof the authority of John Collinson, of London; is necessary to be obtained ; and such balance of-.the pro-: eeeds of the sale of-the remainder, of the said sum of four millions of bonds as remains .unapplied by the party, of the first part at the date- of. the execution of the deed.Mn the payment of the pliabilities which these trustees assumed,! the deed providedthat they shall be limited and- restrained to the proceeds of the sale of such of the aforesaid four millions of dollars of the bonds of the State of Florida as may come to *720 their hands,, exclusive, of the said- $1,200,000, noio oil deposit, in London, which said $1,200,000 of bonds shall be applied .- exclusively to the coinpletion of said railroad.” ...Theyleed',furthér provides that,nothing-in., the, contract, shall%e, con.;, s strued to-interfere or conflict with .any contract or'.arrangement that has, heretofore been made ;wi,tl,i Jolin.CQllipson.or. Aaron Barnett,-or their associates,'for .the,;sale or negotiation of bonds that may,have been or may hereafter be issued.
The several,, recitals in .this - deed. must, be-congtr.ued;together and made' consistent. The, general power,as to,the, contract for the proceeds of four. Millions■ of bonds,-is afterwards limited, and in this limitation-,;$1^200;0.00 ,of these-, bonds are stated' to be on deposit in,. London-^ and1 these:., parties contract to apply these $l,2()0,00p.of-bond's to the'' completion, of the road, at,-the,,same, time agreeing not to-.,, intérfere with any contract or arrangement'for the sale or negotiation of bonds made with .Collinson or Barnett. A fair construction of, these recitals-shows,-that $1,200,000 of the four million'of bonds .are ,on deposit in London, and we are by this contract'left in.doubt -as to- whether1 the one-million of bonds then on deposit are not the bonds of the State exchanged with the: Jacks'oriville, Pensacola and Mobile.Company for the bonds of. the Florida .Central Company, which are the .bonds- out of which the rights, and equi--. ties claimed in this -suit by the State arise. This question is settled by. an admission- of the.State through.its attorney placed on record that the Florida, Central- Nailroad Com- , pany could prove b¡¡-.John Collinson that the bonds of the . State issued for the 'Florida Central Road have never been sold, cm id. that nothing' has been paid by the State'on said\ State bonds .-¡a L,.a
-, -What: may, be- the;proper.-proceeding upojl the.parfcofthe ¡plaintiffs t-o revive thetsuit;í\s?§g&lit§Víke OSgputriXjlQrtwhat *728 may be the proper proceeding upon the part of the executrix to be made a party in the court below to contest the validity of this judgment against her testator, are matters for the consideration of each of these parties. So far as this court is concerned the executrix is in no condition to prosecute an appeal. The simple filing of letters testamentary after final judgment against her testator makes her no party to the suit, and the appeal, so far as she is concerned, must be dismissed. This general subject in proceedings other than under the code, is examined in the case of Alston vs. Rowles, 13 Fla. 113 ; and there is nothing in the code which sanctions the proceeding here had by the executrix.
The case of Robert J. Washington, without going into unnecessary details, is this : The Trustees of the Internal Improvement Fund, plaintiffs, bring this action against Milton S. Littlefield and the J. P. & M. R. R. Company, claiming that they are entitled to certain securities purchased by him or the company, under an agreement made with the trustees to purchase and surrender these securities to them for cancellation. On the 20th of August, A. D. 1875, the court “ adjudged ” these securities to be the property of the trustees, and this is the final judgment rendered as to them. On the 6th of January, A. I). 1876, Robert J. Washington filed, among the papers in this case,, the report of a special master of the Circuit Court of the United States for the Northern District of Florida, stating a sale on the 2d day of August, 187.5, of the interest of M. S. Littlefield in these securities, under a decree made in a case pending in the Circuit Court of the United States, wherein John H. Miller was plaintiff and Milton S. Littlefield and others were defendants. The master reported that at this sale Robert J. Washington, through his agent, E. M. L’Engle, was the purchaser of said securities. Upon the same day a certified copy of the decree of the Circuit Court of the United States in the case stated,.directing a sale .of Little-field’s interest in these securities, was also filed in this case. *729 The record discloses no action taken by the Circuit Court of Duval county upon the filing of these papers. Robert J„ Washington was no party to the record at the date of the-final judgment, and at no time did he ask the court to make him a party for any purpose. The claim made here is that he has all the interest in these securities which M. S. Littlefield had; that while not a party to the proceedings in the-Circuit Court, he has the right to join in the appeal, and to-represent and stand in the place of M. S. Littlefield, as his-successor in the ownership of the bonds affected by the-; judgment of August 26th, 1875. These papers filed by Washington constitute no part of the record of the judgment in the Circuit Court of Duval county. That court has taken no action in reference to them, nor has it been asked so to do. To the final judgment Washington is neither party nor privy. As remarked by Chief Justice Marshal, “ the only parties the court can know are those in the record. They cannot permit counsel who represent parties who may think themselves interested, not in the record, to come, in and interfere.” 9 Pet. 494 . The code, which controls this appeal, provides that “ any party aggrieved may appeal; ” and this means “ a party to the record or his representatives, and not any person who may feel aggrieved when he is no party to the suit.” 28 Barb. 306 . The- court in the case in 7 Paige, 51 , cited by appellant, holds that where an executor institutes proceedings in his own name only before the surrogate, any other person who has an interest in establishing the will, and who would be precluded if the decision was against its validity, has an unquestionable fight to intervene and make himself a party to the proceeding. Chancellor Walworth cites as authority for this view the laws and practice of the English Ecclesiastical Courts; and such is unquestionably the practice in those courts, when exercising original jurisdiction in this particular matter. The Chancellor remarks further : “ And they probably have the same right to come in as interveners to protect their rights *730 ■on appeal.” For this statement of a probability he gives no ■authority, and we can find no sanction for such a practice an any English or American case. By the revised statutes "of New York provision is made that any legatee or devisee named in the will, or any heir or next of kin to the testator, may appeal to the Supreme Court from the decision of the surrogate, either admitting such will to probate or refusing the same. 42 N. Y., 279 .
In Philips vs. Shelton, ( 6 Iowa, 545 ,) the Supreme Court of Iowa held that a party has no right to apjieal until some question to which he was a party has been adjudicated by the court of original jurisdiction. The action of the party whose appeal was dismissed in that case is very similar to that of Washington here. The action was for specific performance of a contract to convey real estate. S. filed a statement that he was a creditor of defendant, and had had attached the land claimed by the complainant. There was nothing in the transcript to show that S. was made a party to the suit, or that any steps were taken by him further than to file said statement, except to appeal from the decree rendered in favor of complainant. The appeal was dismissed. See also 13 Smedes and Mar., 97; 2 California, 57 ; 13 La. An., 199.
The pi’aetice in the English courts is, that a person not a party to the record cannot appeal without some action of the court exercising original jurisdiction as to him or his rights. "When not a party to the case, he must first resort to the court below. Berry vs. the Attorney-General, 2 Mac. and Gov., 16, cited in 2 Daniels’ Chy. Prac., 1541.
In the case of Gifford vs. Hort, 1 Sch. and Lef., 41, it is held that if the right of a remainderman or of any person entitled to the estate in any way is bound by the decree, he, as well as the person against whom it was made, lias a right to appeal from it. But he does not appeal by filing a simple statement setting forth what be conceives to be his right; and then enter an appeal, as was done here. He files a- *731 supplemental bill to make himself a party to the suit, and to have the benefit of the proceedings therein for the purpose of appealing.
It is said that creditors coming in before the master under a decree may appeal, although not parties to the bill. Such is the remark of the chancellor in the case of Gifford vs. Hort. The distinction between .this case and the case of the creditors is evident. A creditor coming into the master’s office to contest the claims of others, or to maintain those of himself, is bound by the decree and is substantantially a party to the case, although his name may not have been inserted as a party. If it is a general creditor’s bill, then all creditors coming in are, technically, parties to the bill. The court in this case has taken action with reference to his rights, has exercised original jurisdiction as to him with him before it, and there is the proper basis for the exercise of supervisory and appellate jurisdiction as to the action of the court in reference to his claim or demand.
Even, therefore, if Washington’s rights were affected (and it is only in such cases that he can come in and appeal) by, the decree against Littlefield, and the' practice of the English courts prevail in this matter, (as to which question we say nothing,) Washington has not taken the proper course to give himself the status of an appellant in this court. His appeal must, therefore, be dismissed.
The following judgment will be entered in this cause :
This cause having been submitted át a previous term of the court on briefs by counsel for both parties, and a transcript of the record of the judgment aforesaid having been seen and inspected, it is considered by the court that the appeals of Eannie H Papy, executrix of the last will and testament of Mariano I). Papy, deceased, and of Bobert J. Washington, are dismissed.
It. is further considered that the order dismissing the case as to,Edward M. L’Engle is.affirmed;
It is further considered that Iherfe is error in said judg *732 ment as to the Florida Central Railroad Company; wherefore it is ordered, adjudged and decreed that said judgment be reversed as to said Florida Central Railroad Company, and that the ease be remanded with directions to dismiss the bill as to said company without prejudice to the rights of persons who may be lona fide bondholders under the statute, if any such there be; that the Florida Central Railroad and all property appertaining thereto, be delivered to the Florida Central Railroad OoiWpany, and that the master in this cause be given such reasonable time for the settlement of his accounts, not beyond the first day of November next, as the court may deem proper, and for such other proceedings as are comformable to law and consistent with the opinion and judgment of this court in this cause.
It is further considered that the respondents recover against the said Fannie S. Papy, executrix of the last will and testament of M.ariano D. Papy, deceased, and against Robert J. Washington and Edward M. L’Engle, all costs by said respondents in this behalf expended, and that the costs in this behalf expended by the Florida Central Railroad Company be taxed by the clerk against the respondent, the State of Florida.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4913394. Public record. Not legal advice.