Florida Land Rock Phosphate Company, a Corporation, Appellant, v. Herbert L. Anderson, Appellee, 50 Fla. 501

Shackleford, C. J., (after stating the facts.) The pleadings in this case have been inartificially drafted and the entire proceedings have been loosely conducted. The record is in such a confused state that we have seriously considered the .advisability of following the precedent established by Judge RANDALL in Mattair v. Payne, 15 Fla. 682, text 686, wherein he said: “There seems to be no better way, to put these parties in their proper position to assert their legal and equitable remedies and disentangle them from the labyrinth of confusion in which they appear to be involved, than to dismiss the whole proceeding. This is sanctioned by Story’s Eq. Pleadings,

Section 271, and cases cited, whether the bill be demurred to or not.” To still further complicate matters and add to the difficulty of our task, the record is poorly prepared, but little attention having been paid to the arrangements of the proceedings or the order in which they appear. ,A compliance with the requirements of Special Rules 2 and 4, adopted Sept. 16, 1895, as amended Feb. 17, 1897, which were in force at the time this transcript was prepared, would have simplified matters and materially lessened our labors.

We call the especial attention of the Clerks of the Circuit Court to these rules, which are now Special Rules 2 and 4, adopted March 2nd, 1905, and insist that in making up transcripts for this court that they comply with their requirements. It is also the duty of the party resorting to an appellate court, as well as of his counsel, to see that his transcript of record is properly prepared, in compliance with the rules of court, and to make the errors complained of clearly to appear. Merchant’s Nat. Bank of Jacksonville v. Grunthal, 39 Fla. 388, 22 South. Rep. 685; Jacksonville St. R. R. Co. v.

Walton, 42 Fla. 54, 28 South. Rep. 59; Hoodless v. Jernigan, 46 Fla. 213, 35 South. Rep. 656. Also see Ray v. Trice, 48 Fla. 297, 37 South. Rep. 582, as to including in and omitting papers from the transcript. In the instant case the appellee in his directions to the clerk had a number of papers included in the transcript which could serve no useful purpose and sought thereby to have still other papers copied therein, including the entire record of another and distinct suit pending in the Circuit Court for Marion county, which would have still further encumbered the record, and entailed additional expense.

As we have said, we seriously considered the advisability of dismissing the whole proceeding, but we have borne in mind, as was said by Judge BALDWIN in Hoyt v. City of Danbury, 69 Conn. 341, text, 348, 37 Atl. Rep. 1051, which language we have quoted and approved in Florida Cent. & P. R. Co. v. Foxworth, 45 Fla. 278, 34 South.

Rep. 270, “Every law suit looks to two results: to end a controversy, and to end it justly; and the first is almost as important as the last.” This suit was instituted on the 23rd day of December, 1896, and has been pending since that time, at different stages being before two Judges of the Fifth Judicial Circuit and finally before the Judge of the Eighth Judicial Circuit, in which Levy county was placed by

Chapter 5121, Laws of 1903. Additional counsel have come into the case for both the appellant and appellee since the issues were made up. Undoubtedly there have been great delay, laches and irregularities upon the part of both appellant and appellee. We have given the record a most careful examination and consideration actuated by a desire to decide the questions raised, and terminate this long protracted litigation if it were possible for us to do so. However, we find ourselves confronted with a serious situation, an absence of necessary parties.

If this be true, then we cannot adjudicate and determine the controversy, as “it is an elemental principle that a court cannot adjudicate directly upon the rights of parties without having them actually or constructively before it.” Robinson, Admr. v. Howe, Dibble & Bunce, Exrs., 35 Fla. 73, text 82, 17 South. Rep. 368; Mattair v. Payne, 15 Fla. 682; Sloan v. Sloan, 21 Fla. 589; Deans, Admr. v. Wilcoxon, 25 Fla. 980, text 1051, 7 South. Rep. 163; Post v. Adams, 39 Fla. 207, 22 South. Rep. 652; Indian River Mfg. Co. v. Wooten, 48 Fla. 271, 37 South. Rep. 731.

Although the question of parties was not raised in the court below either by demurrer, plea or answer, and has not been suggested here, under the authorities cited if it plainly appears from the record, especially from the bill and exhibits, there is a lack of necessary and indispensable parties, this court will notice the fact on its own motion and reverse and remand the cause, with leave to add such parties and for such other proceedings as may be conformable to law. Morgan v. Blatchley, 33 West Va. 155, 10 S. E. Rep. 282; Prentice v. Kimball, 19 Ill. 320; Knopf v. Chicago Real Estate Board, 173 Ill. 196, 50 N.

E. Rep. 658; Gordon v. Johnson, 186 Ill. 18, 57 N. E. Rep. 790; Hoe v. Wilson, 9 Wall. 501; Minnesota v. Northern Securities Co., 184 U. S. 199; Dabney v. Preston, 25 Gratt. (Va.) 838, text 842; 15 Ency. of Pl. & Pr. 687, 689. Also see McLaughlin v. Van Keuren, 21 N. J. Eq. 379. In the instant case Henry H. Graham and George O. Stevens as copartners doing business under the firm, name of Stevens, Graham & Company, as well as Henry H.

Graham individually, were made defendants to the bill, but after they had united with the Florida Land Rock Phosphate Company and other defendants in filing a joint and several answer to the bill the complainant filed in the Clerk’s office a praecipe for dismissal as to such defendants, thereby seeking to have the bill dismissed as to them. As was decided in Long v. Anderson, 48 Fla. 279, 37 South. Rep. 216, this action of the complainant, without an order of court, could not operate as a dismissal of the bill as to such defendants.

However, the final decree of the 14th day of May, 1897, which was afterwards opened up, as well as the final decree of the 21st day of May, 1904, from which this appeal was taken, refer to the dismissal of the bill as to such defendants. This may be sufficient as a dismissal. Macfarlane v. Dorsey, 49 Fla. 341, 38 South. Rep. 512. At any rate, the bill was treated as dismissed as to such defendants by such defendants themselves, the appellee, the appellant and the court below. They were not before the trial court when the final decree was rendered and they are not before this court.

Were and are they necessary and indispensable parties? That they were regarded bv the appellee as proper parties and that, as a matter of fact, they were proper parties there can be no doubt. Johnson v. Little, 141, Ala. 382, 37 South. Rep. 592; Robinson v. Davis, 11 N. J. Eq. 302, S. C. 69 Am. Dec. 591; Miller v. Jamison, 24 N. J. Eq. 41; Bennett v. McGuire, 58 Barb. (N. Y.) 625. However, this is not sufficient.

They must be indispensable parties, having such an interest in the controversy that a final decree between the parties before the court cannot be made without affecting their interests, or leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience. Donovan C. Campion, 85 Fed. Rep. 71, and authorities there cited; Shields v. Barrow, 17 Howard (U. S.) 130; 16 Cyc. 189.

An examination of the bill discloses that these absent defendants are directly charged with fraud and with having made a fraudulent conveyance to the Florida Land Rock Phosphate Company, which conveyance the bill seeks to have removed as a cloud upon complainant’s title. This sufficiently shows that such defendants are necessary and indispensable parties. Hannibal & St. J. Ry. Co. v. Nortoni, 154 Mo. 142, 55 S. W. Rep. 220; Chadbourn v. Coe, 45 Fed. Rep. 822, affirmed in 51 Fed. Rep. 479; Hill v. Lewis, 45 Kan. 162, 25 Pac. Rep. 589; Murphy v. Jackson, 5 Jones Eq. (N. C.) 11; Judson v. The Courier Co., 15 Fed.

Rep. 541; Mackay v. Gable, 117 Fed. Rep. 873. In Brown v. Solary, 37 Fla. 102, text 115, 19 South. Rep. 161, in discussing the question of necessary parties this court held certain parties not to be necessary who had parted with all their interest in the land in question for the reason that no fraud was charged against them and no relief asked against them, implying that if fraud were charged and relief asked against them they would be necessary parties. Also see McDonald v. Russell, 16 Fla. 260; Betton v. Williams, 4 Fla. 11.

However, there is still another reason why such defendants are necessary and indispensable parties. The record shows that they had conveyed the lands in question to the Florida Land Rock Phosphate Company by a deed containing covenants of general warranty. See Indian River Mfg. Co. v. Wooten, supra, and authorities therein cited, especially Busby v. Littleefild, 31 N. H. 193; 18 Ency. Pl. & Pr., 799; 6 Cyc. 319; 1 Foster’s Fed. Pr., (3rd ed.) Sec. 53. Having found that indispensable parties are not before the court, it necessarily follows under the authorities cited that the decree must be reversed.

We might well stop here; but in view of the length of time this litigation has been pending and realizing that it is to the interest of all the parties to have it terminated as early as may be, we again call attention to the character and state of the pleadings. It may be that the bill as framed fs open to an attack by demurrer, though no such attack was made upon it. It may be that the answer as framed is open to attack by^ proper exceptions. It might be advisable for all the parties to look to their pleadings and see that they are in proper shape as well as that all the necessary parties are before the court.

We express no opinion upon the merits, as it is neither proper nor advisable for us to do so. The decree is reversed and the cause remanded, with leave to the appellee to add the necessary parties defendant to his bill and with leave to all the parties litigant to apply to the court for permission to recast, or amend their pleadings as they may be advised. The appellee to pay the costs of this appellate proceeding. Cockrell and Whitfield, JJ., concur. Taylor and Parkhill, JJ., concur in the opinion. Hocker, J., disqualified.