Opinion
April 27, 1951. Rehearing Denied July 11, 1951.
An Appeal from the Circuit Court for Dade County, George E. Holt, Judge.
Anderson Nadeau, M.A. Baskin and Andrew T. Healy, all of Miami, for appellant.
Ward Ward and Fleming Hill, all of Miami, for appellee.
Affirmed.
SEBRING, C.J., and TERRELL, THOMAS, ADAMS, HOBSON and ROBERTS, JJ., concur.
On October 5, 1944, a bill of complaint in the case at bar was filed in the Circuit Court of Dade County, Florida. A motion to dismiss on various grounds was directed thereto, which by an appropriate order, was denied. This order was reviewed by this Court on Petition for Certiorari under Rule 34. The petition was denied. On October 28, 1944, the Universal Equipment Co. answered the bill of complaint. The cause was referred to a Special Master and voluminous testimony was taken by the parties, when two final decrees were entered below — one under date of October 3, 1945 and the second was entered on petition for rehearing under date of May 10, 1946.
An appeal was taken therefrom and reviewed here was paragraph 4 of the final decree. The point presented and decided was the measure of damages recoverable by the Harvey Corporation of the Universal Equipment Co. for unlawfully depriving and withholding possession of the Strath Haven Hotel, with furniture and fixtures, from July 18, 1944, until February 5, 1945. This point was here adjudicated and reported in 158 Fla. 644, 29 So.2d 700, where a considerable portion of the history or background of the litigation may be found. The rule prescribing the measure of damages recoverable having been established, the cause was reversed with directions for further proceedings.
On the going down of our mandate on the first appeal the cause was by the Chancellor re-referred to a Special Master, with directions to take testimony of the parties and thereafter make recommendations as to an appropriate decree. The Special Master reported that he could not make a recommendation as to an appropriate decree, largely on the theory that no evidence was in the record that could be construed as supporting such a recommendation, although the Harvey Corporation was entitled to recover for damages for the unlawful detention of the Strath Haven Hotel from July 18, 1944, until February 5, 1945. The Chancellor entered a decree dated December 22, 1948, based on the recommendation of the Special Master. From this decree the Harvey Corporation took its second appeal to this Court and our opinion and judgment thereon are reported in 42 So.2d 577. We reviewed the record and held that the Harvey Corporation was entitled to recover from the Universal Equipment Co. as damages for the detention period of the Strath Haven Hotel the sum of $29,700, with interest at the rate of 6% from February 5, 1945. As of March 23, 1950, the principal and interest so authorized by this Court approximated the sum of $38,716.80.
On the going down of our mandate on the second appeal, 42 So.2d 577, a final decree was entered: first, for the sum of $29,600, with interest at the rate of 6% from February 5, 1945, until March 23, 1950, in the total sum of $38,716.80; second, a judgment in the further sum of $6,855.52, plus interest at the rate of 6% from February 5, 1945, until March 23, 1950, in the total sum of $8,967.02. An appeal therefrom has been perfected here on the part of the Universal Equipment Co. The second judgment or decree, supra, stems from a Cigar Concession rental in the Hotel in the sum of $7,600 paid to the receiver of the Hotel in the form of a lease for a period of one year, which began about December, 1944, and the apportionment thereof resulted in a balance due plaintiff-appellee in the sum of $6,850.48, plus interest, making the total amount of $8,967.02.
The $7,600 item appears for the first time in the testimony of the Receiver. It appears, according to his testimony, in his written report made to the Court below touching his activities as Receiver of the Hotel. A diligent search has been made here for the report of the Receiver involving the disputed item, but thus far it has not been found in the record. If the report is in the record, the briefs of counsel fail to point it out. If the Receiver's report, including the $7,600 item, was considered by the Chancellor in the entry of the decree appealed from then the same was not certified in the transcript sent to this Court. Our study of the record in connection with this controversial item of $7,600 leads to the conclusion that it was not considered or ruled upon, approved or disapproved by this Court. The only item encompassed by our reversal order was the amount recoverable for the detention. The appellant is entitled to its day in court on the question of whether or not it should pay to the plaintiff-appellee the apportioned part of the $7,600 paid to the Receiver in 1944 prior to his discharge in 1945. Accordingly, I would affirm in part and reverse in part the decree of the lower court.