Smith and Armistead, Appellants, vs. Bryan Croom, et al., Appellees, 7 Fla. 180

DuPont, J., delivered the opinion of the Court. This is an application on the part of the appellees for a re-hearing of the above stated cause, which was decided at the present term. The petition sets forth two grounds as the prominent basis of the application : First, that the Court erred in deciding upon the survivorship of William Henry, the son of Hardy B. Croom, for the reason that that point had not been passed upon by the Chancellor who pronounced the decree, and for the further reason that the conflict of evidence upon the fact, made it a case peculiarly appropriate for the decision of a jury.

Secondly, that the Court erred in deciding that the domicil of succession of H. B. Croom was in North Carolina at the date of his decease; and that error is accounted for upon the hypothesis, that in the consideration of that point by the Court, the act of voting hy Mr.

Croom, in Florida, in the year 1833, did not receive its proper weight, and that too ■much stress was placed upon the fact that his family continued to reside at the domicil of origin in North Carolina With'respect to the first point, we are fully satisfied that it was not only within our province, but that it became'our' imperative duty to decide upon the question of survivor-ship.

The position assumed in the petition is, that the Supreme Court, as an appellate tribunal, is prohibited by the very nature of its organic functions from determining any question which may not have been passed upon in the Court below, and that to do so would be to convert it into a Court of original jurisdiction. This position may be perfectly sound when applied to an appeal from an interlocutory decree, which does not conclude the merits of the case, but it is clearly not applicable to an appeal from a final decree. . The decree appealed from in this case was, that the bill be dismissed.

Conceding the position to be. well taken, then how, and by what means, is the Court to ascertain whether or not the Chancellor did pass upon the question of the son’s survivorship ? The only legitimate source of information that we can resort to, to ascertain the action of the Chancellor, is the decree itself, which constitutes a part of the record.

That decree is in the following words, viz; “ This cause having been heard in February, 1856, and held under advisement, until the Court being advised of its judgment and decree to be rendered therein ; and it appearing to the Court that the complainants have failed to sustain the allegations of their bill, and are not entitled to the decree prayed for therein; it is therefore ordered and decreed that the said bill be dismissed, and that the complainants pay the costs of the suit.” Will it, in the face of this decree, be seriously contended that the quéstion of the survivorship of the son was not determined by the Court below?

Was it not a most material “allegation” in the plaintiff’s bill, and the one upon which her right (as his administratrix) to the possession of the personal property in controversy, mainly depended ? Here was a suit between the administratrix of the son, and the administrator of the father — the question of survivorship as between the two, was the controlling question in the case, so far as the right to the possession of the personal property, in their respective representative characters, was concerned.

If the father survived, the possession belonged to the administrator; but if the son survived, then his administratrix was entitled to the possession, no matter whether the domicil were determined in Florida or in North Carolina. Some suggestion was made at the hearing of the original case, that if the domicil should be determined to be in Florida, the Court ought not to disturb the possession of the defendants, even though it should be decided the son survived the father, inasmuch as the defendants, in that state of case, would be the only parties entitled to the distribution of the estate.

A full answer to this view of the matter is, that distributees of personal jaroperty are permitted to enforce their claims only through an- administration duly granted upon the estate of the decedent, and that by the recorded consent of the defendants, the complainant was permitted to amend her original bill, by styling herself as the administratrix of the son, and thus her representative character, and the rights and incidents attaching thereto, were fully recognised by the defendants themselves. ¥e will not feign an ignorance of the source whence the counsel who framed the petition for this application derived the information that the question of the survivorship of the son had passed subsilentio before the Chancellor.

Thatinformation, we presume, was furnished by the printed opinion of the Chancellor, which was politely handed to the members of the Court during the progress of the cause, and the perusal of which they did not debar themselves from any false notions of propriety. But it will be distinctly recollected that the Court refused to permit the same to be read, for the avowed reason that it constituted no part of the record upon which they were called to decide.

This Court furnished by the reasoning of the Court below, but when it comes to decide, it has to do only with the conclusions as they are embodied in the judgment or decree — the logic of the Judge is beyond its control. But the question as to the province of this Court to consider all questions made by the pleadings, has been authoritatively settled by a former adjudication, and we need do no more than briefly to refer to the case. In the Southern Life Insurance and Trust Co. vs.

Cole, 4 Florida Rep., 359, Justice Thompson, in a very able review of the cases on this subject, sums up in the following language: “ From a careful review of the authorities, we are satisfied that an appeal in equity is substantially a re-hearing of the cause, and that the appeal opens the whole case to the respondent in the Appellate Court; and although the appellant may show that the view taken by the Court below was error.oneous, yet on the other hand the respondent may argue, and show if he can, that upon the whole case the same result must be attained here.

The authority of this Court, by sec. 5th of the act of Feb. 10, 1832, (Thomp.

Dig., 449,) is ‘to reverse or affirm the judgment, sentence or decree of the Court below, or to give such judgment, sentence or decree as the Court ought to have given.’ It is very clear that the power to give the decree which the Court below ought to haye pronounced, could never be exercised if this Court did not possess the right to look into the whole case, as it is presented in the record, and to con. sider it as th.e Court below should have considered it. ¥e are therefore satisfied that we have the right to look into the whole cause, as it is presented in the record — to reexamine questions decided against the respondent, and also such as passed sub silentio in the Court below ; or to consider points made here for the first time, provided they are made by the pleadings and proofs, but adopting, howpyer, for the protection of the parties, the guards laid down by C.

J.

Spencer, in the case before cited, that neither party will be permitted, to surprise or mislead his adversary, or to make objections which might have been obviated had they been presented for the consideration of the Court below.” ~With regard to the suggestion that the conflict of evidence upon the question of survivorship, makes it a point peculiarly appropriate for an issue to the country, we have only to remark, that if the conflict were such as it is represented to be, the suggestion woulcl have been much more appropriately made in the Court below than here, where the consequence would be a still further delay of rights which have already been in litigation near twenty years.

Nut this Court does not feel the pressure of the conflict of the evidence to the extent suggested, for our conclusion upon this point is the result of a moral conviction, which leaves no reasonable doubt upon the mind. An issue out of chancery is usually at the suggestion of the Chancellor himself, and is intended to aid him in arriving at a satisfactory conclusion as to a particular fact; it is not a matter of right. "With regard to the second ground of error assigned in the petition, viz : that in the consideration of the question of domicil, too little weight was given to the exercise by Mr.

Croom of the political right of voting, and too much of the fact of the continued occupancy by his family of his original family mansion. We have only to remark that we have maturely considered the point, by an anxious and deliberate review of our reasoning on the subject, and a thorough re-examination of the authorities relied on ; and we find no cause to suspect the correctness of our original conclusion. In treating of these acts in the original opinion, they are viewed merely as criteria.of intention, more or less controlling, according to the attendant circumstances.

The error into which the counsel have fallen in the argument on this point, we conceive to he, that instead of weighing the various acts and declarations of Mr.-Croom, .as a matter of evidence, to determine his intention, they would make the isolated act of voting over-ride every other indication, and therefore conclusive. We do not think that any of the authorities, when properly interpreted, give any support to this view.

We deem it proper to remark, in conclusion, that the mode observed in presenting this application to the Court, has been in some measure a departure from the obvious requirement of the rule upon this subject. That rule prescribes that Re-hearings must be applied for by petition in writing within fifteen days after the judgment or decree? setting forth the cause or causes for which the judgment or decree is supposed to be erroneous.

The Court will consider the petition without argument, and if a re-hearing is granted, direct it as to one or more points, as the case may require.” The application in this case has been presented in the form of an elaborately written argument, and not by simple petition, as is directed in the rule. We mention this merely for the purpose of maintaining the correct practice under the rulo, and with no design to impute an intentional impropriety to the counsel who makes the application.

The soundness of this interrelation of the rule is too obvious to need any argument in its support, for it will readily occur to every practitioner that if it be important to one party to have his cause re-heard, it is equally important to the other that there should be an end to the litigation. The case of Lines vs. Darden, (6 Fla. Rep. 37,) forms no exception to this view of the practice. In that .case the petition had been filed at a former term, but was not then heard.

It afterwards came before the Court, which was composed of other Judges, (an election for these officers having intervened,) and inasmuch as they had not heard the case when argued at bar, as a matter of necessity, and to avoid the inconvenience of another argument on the merits, they resorted to the original briefs of the counsel in order to put .themselves fully in possession of the-case.

There was no new brief to support the application for the re-hearing. [The following opinion of Pearson, J., on the case as first decided, did not reach the Reporter in time to be inserted in its place immediately following the main opinion, and is here inserted.] We desire to remark in this connection, that in view of the important principles of law decided in this case, and' also in view of the heavy interest at stake, with a most anxious desire to detect any error that we may have inadvertently fallen into, we have, under these veiy peculiar circumstances, felt ourselves at liberty to depart from the strict, and, we think, proper practice, and have maturely considered the argument and authorities presented by the-counsel for the applicant.- But in thus acting, it has been with the distinct understanding among ourselves that if, in the investigation, we should see cause to waver as to our original conclusions, it would be appropriate to call for an argument from the other side.

We trust, however, that this departure from strict practice will not hereafter be invoked as a precedent. The application for a re-hearing of the cause is refused, and the petition ordered to be dismissed.