Since filing the original opinion in this case on May 5, 1939, a petition for rehearing and an amendment thereto have been filed by appellants in this cause within the time prescribed by the rules of this Court. The Court, upon the consideration of the several grounds appearing in the petition and amendment thereto, entered an order granting a rehearing, when the case was orally argued and thoroughly presented at the bar of this Court by counsel for the respective parties.
We do not think it necessary to consider or pass upon all the grounds of the petition and amendment thereto, neither is it necessary to restate the facts of this case, because the same are elaborately and accurately set forth in the former opinion of this Court as prepared by the Honorable WILLIAM H. ELLIS, former Chief Justice of this Court, and reported in
The appeal here is from an order dated April 8, 1938, entered by the Honorable Paul D. Barns, Circuit Judge of Dade County, Florida, which denied or disallowed a petition for the purpose of obtaining an order vacating and disallowing and decreeing null and void the order allowing an unsecured claim in the sum of $75,000.00, previously approved by an order of the Circuit Court of Dade County, Florida, dated November 17, 1936, and the petition so denied was presented by C.H. Bancroft, as receiver of the City National Bank in Miami, and Tom Newman, a depositor of the City National Bank in Miami.
The order denying the petition of intervention for the purpose of obtaining an order to vacate a previous order dated November 17, 1936, entered by the lower court, was based on a motion to dismiss filed in the name of Will Allen, a bondholder, containing the grounds, viz: (1) there is no equity in said petition; (2) the petition sets forth no cause for equitable relief; (3) the petition sets forth no cause or grounds for the vacation of the order allowing unsecured claims.
The sole question presented by this appeal on this rehearing is whether or not the petition of intervention contains sufficient allegations of law and fact to support a decree declaring void ab initio the order dated November 17, 1936, approving and allowing an unsecured claim in the sum of $75,000.00. The lower court, by its order appealed from, held that the petition for intervention was insufficient and denied the same. It is possible that the lower court overlooked or failed to consider the decision of this case when here last and which is reported as Bancroft v. Allen,
The following language was used in the former opinion of this Court in 128 Fla. text pages 16, 17 and 18, viz.:
"The petition for leave to intervene contains the prayer *Page 861 'That, after the allowance of this petition for leave to intervene, it be construed as their bill of intervention for relief in this case, without the necessity of filing a further bill of intervention or other pleadings; that Henry H. Taylor, as Receiver of the City Trust Company, Will Allen, and all other interested parties be required to plead to this intervention within such reasonable time as the court may fix, and that thereafter testimony be taken without delay.'
"The petition further attacked the regularity and validity of the establishment of a debt of $75,000.00 against Taylor as receiver of the City Trust Company in which the petitioner C.H. Bancroft, as receiver of the City National Bank in Miami, claims a direct interest and as to which it is prayed that an order allowing the payment of the $75,000.00 be set aside upon the grounds of collusion between the receiver and the attorneys employed to represent him. The said amendment adopted all the prayers set forth in the original petition." * * *
"The order of the lower court also contains the following clause: 'The ground for intervention most strongly urged in the petition and amendment and in argument of counsel is that the intervenors should have an opportunity to contest the compromise settlement entered into before Judge Paul D. Barns and approved by judge H.F. Atkinson in what is known as the Will Allen suit. The denial of the petition to intervene will not deprive petitioners of any of their rights, as they may move in the proper forum to reopen the compromise settlement, and ask to be given an opportunity to be heard in opposition thereto.' "
This Court in considering the sufficiency of the petition of intervention then before it in Bancroft v. Allen,supra, used the following language at text pages 23 and 24, viz: *Page 862
"These allegations sufficiently show the interest of the purchaser, Bancroft, as receiver of the City National Bank in Miami, in the administration of the assets of The City Trust Company by Henry H. Taylor, as receiver.
"The petition, which is very long and sets forth as clearly as the intricate and complex interests of the various corporations involved permits, contains many allegations of fact which are merely evidentiary of the right of the petitioners to intervene in the case. These numerous allegations of evidentiary facts were probably made by the pleader to avoid, as was stated in the petition, the necessity for tiling a bill of intervention in the event the application to intervene should be allowed, so that the petition might be considered as a bill of intervention without any further amendments to the petition than were made.
"It is clear from the allegations of the petition that the efficient administration of the assets of The City Trust Company in the hands of Henry H. Taylor, as receiver, is questioned both because, as it is alleged, there has been waste and much extravagance in such administration, as well as conspiracy between the receiver and counsel, which he has employed at various times, to exhaust the assets of the corporation, not in the interest of its creditors, but in the interests of those who are alleged to have charged unreasonably high fees for unnecessary services.
"The interests of Bancroft as receiver, in the assets of The City Trust Company and the due and proper administration of such assets would entitle him to the right of an accounting against the receiver and an investigation of the latter's activities in the administration of the corporation's assets. Such a bill may have been filed, against the receiver by consent of the court. The petition in this case might just as well have been treated as an application to *Page 863
file such a bill. Doke v. Williams,
"In any event, Bancroft, as receiver, by virtue of his interest, has under the statute a right to intervene prointeresse suo in order that his interests may be established, if any exist, and recovery had to the extent of a due and proper proportion of the Company's assets efficiently and economically administered.
"The decree of the Circuit Court declining to allow the intervention and striking the petition from the files is reversed with directions to permit the defendants to interpose such pleadings as they may desire and to proceed with the making of appropriate decrees after a full hearing upon the issues joined."
It will be observed that this Court in Bancroft v. Allen,supra, not only approved the petition to intervene so presented, but approved and held that the allegations of law and fact were sufficient as a bill of intervention. We have compared the allegations of the petition denied by the lower court in the case at bar with the allegations of the bill of intervention in Bancroft v. Allen, supra, and find that the petition dismissed by the lower court contains all the substantial material allegations of the bill of intervention in the suit of Bancroft v. Allen, supra. The case at bar is ruled by Bancroft v. Allen, supra, which settled the law of this case in respect to the sufficiency of the allegations of the petition, and the order assigned as error on this appeal is a departure therefrom. Our former opinion of May 5, 1939, likewise overlooked the substantial similarity of the petition for the intervention held to be legally sufficient on the prior appeal in this case, when compared with the petition filed in the lower court and the denial of which is sought to be reviewed on the present appeal. Our former opinion, filed May 5, 1939, in this appeal, in so far as the *Page 864 same is in conflict with or inconsistent with this opinion, is hereby receded from, and altered and modified, but in so far as said opinion is consistent with this opinion, it is adhered to.
The order appealed from is reversed with directions for further proceedings in the lower court not inconsistent with this opinion.
It is so ordered.
WHITFIELD, BUFORD and CHAPMAN, J. J., concur.
BROWN, J., concurs in conclusion.
THOMAS, J., dissents.
Justice TERRELL not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
