Opinion
No. 60-145.
May 29, 1961.
Appeal from the Circuit Court, Dade County, Ray Pearson, J.
Van Buren Vickery, Miami, for appellants.
Thomas Horkan, Jr., Miami, Emerson L. Allsworth, Jr., Fort Lauderdale, and A. Budd Cutler, Miami, for appellees.
This appeal involves a further phase of the controversy dealt with in our opinion in Williams v. American Crafts, Inc., Fla. App. 1961, 129 So.2d 165. The plaintiffs-creditors here appeal from an amended final decree in an action where they sought by creditor's bill to follow assets of the corporation. The decree dismissed the bill but provided that certain money allegedly belonging to the corporation should be retained by a defendant, Lenders Limited, Inc., subject to the claim of the plaintiffs, and further that jurisdiction was reserved to rule upon and determine that claim.
The decree is thus contradictory because the chancellor may not dismiss a claim with prejudice and also reserve jurisdiction to rule upon and determine it. It would therefore have been necessary to remand this cause without regard to the other findings, but it now appears that the holdings in our previous opinion referred to above will require material change in the decree here appealed, although not available to the chancellor at the time this decree was entered. It is thus necessary to reverse the amended final decree and remand this cause for further proceedings not inconsistent with our opinion in Williams v. American Crafts, Inc., supra.
It is so ordered.
HORTON, C.J., PEARSON, and CARROLL, CHAS., JJ., concur.