judge of the Fifteenth judicial circuit of,ceiver, and from the order of Judge E. C. Florida, on the 16th of May, 1923.

On the 17th of May, an order and decree signed by E C. Davis, judge of the circuit court of the Fifteenth circuit, was filed and recorded in the chancery order book of the circuit court of Dade county, in which it was As a general rule an appeal, or other proconsidered, ordered, adjudged, and decreed ceeding for review, will not lie from an that Judge H. F. Atkinson was disqualified interlocutory order or decree unless specialto hear the application by reason of his prej-ly permitted by statute or constitutional proudice against Paul R. Scott, and awarded vision, and in the absence of such proviand allowed Scott the sum of $15,000 for his sion, in order that there may be a review compensation as receiver. on appeal, a final judgment, order, or decree must have been rendered in the cause. 3 C. J. pp. 432 and 433, and cases cited.

(100 So.)

jurisdiction of the court, and liable to its, They are certainly a final determination of the orders, and, while the decree was final as particular matter arising upon the complainto the rights adjudicated between the par- ant's petition for allowances, and direct the ties to the suit and of the principal sub- payment of money out of the fund in the hands ject of the litigation, it left other impor- of the receiver. Though incidental to the cause, the inquiry was a collateral one, having tant matters, requiring the judicial action a distinct and independent character, and reof the court in relation to the same property, ceived a final decision. The administration of unsettled and undetermined, and the rule the fund for the benefit of the bondholders may seems to be that, where such is the case, continue in the court for a long time to come, rights affected by orders or decrees, made dividends being made from time to time in paysubsequent to the decree determining the ment of coupons still unsatisfied. The case is rights of the original litigants, may be rea peculiar one, it is true; but under all the cirviewed on appeal. cumstances, we think that the proceeding may be regarded as so far independent as to make the decision substantially a final decree for the purposes of an appeal."

[4] Such is the rule in the United States Courts, notwithstanding the act of Congress allows appeals only from final decrees.

In the case of Farmers' Loan & Trust Co., Petitioner, 129 U. S. 206, 9 Sup. Ct. 265, 32 L. Ed. 656, the court said:

"But the doctrine that, after a decree which disposes of a principal subject of litigation and settles the rights of the parties in regard to that matter, there may subsequently arise important matters requiring the judicial action of the court in relation to the same property and some of the same rights litigated in the main suit, making necessary substantive and important orders and decrees in which the most material rights of the parties may be passed upon by the court, and which, when they partake of the nature of final decisions of those rights, may be appealed from, is well established by the decisions of this court. Blossom v. Milwaukee, etc., Railroad Co., 1 Wall. 655; Forgay v. Conrad, 6 How. 201; Fosdick v. Schall, 99 U. S. 235; Williams v. Morgan, 111 U. S. 684; Burnham v. Bowen, 111 U. S. 776.

"The question in such cases is not whether the order complained of is of a character decisive of questions that the parties are entitled to have reviewed in the appellate court, but whether the order or decree is of that final nature which alone can be brought to this court on appeal. It is upon this ground mainly that the right of appeal is resisted in the present case; but we are of opinion that, within the true principles which establish the finality of a decree of the circuit court in reference to the allowance of an appeal, this order is a final decree."

Even in jurisdictions which, unlike Florida, do not permit an appeal from interlocutory orders or decrees, it is held that, where a proceeding in an original action is a distinct proceeding in itself, and collateral to the main action, an order made in reference to that proceeding is a final one that may be appealed from. Cassatt v. Mitchell Coal & Coke Co., 150 Fed. 32, 81 C. C. A. 80, 10 L. R. A. (N. S.) 99.

In Tompson v. Huron Lumber Co., 5 Wash. 527, 32 Pac. 536, it was said:

"The motion to dismiss the appeal is based upon the ground that this court has no jurisdiction of the matter appealed from, because the order fixing the compensation of the receiver in said action is not a final judgment, order, or decree from which an appeal lies to this court, and because the fixing of the compensation of the receiver is a matter entirely within the discretion of the court by which he was appointed. While this is a proceeding in the original action, yet we are of the opinion that it is a distinct proceeding in itself, and that the order made with reference to the compensation of the receiver is a final one in so far as the amount allowed is involved. This precise point was decided in the case of Trustees v. Greenough, 105 U. S. 527, in which such an allowance was held a final determination of a particular matter, and, though it was incidental to the cause, that the inquiry was a collateral one, having a distinct and independent character, and was held to be appealable."

The orders and decrees here appealed from were made and entered upon matters that arose after the judgment or decree entered on March 28th adjudicating the rights of the parties to that suit, and partake of the nature of final decrees as to the rights adjudicated in those orders and decrees. They are so far independent of the decree in the main case as to make them substantially final decrees for the purpose of appeal.

In relation to the finality of the decrees appealed from, what was said by the Supreme Court of Ohio, in a similar contention, is pertinent:

"If it were to be held that the order in question is not a final order from which appeal will lie * then we are making this very order final, conclusive and forever binding by the very act of holding that it is not final." Thompson v. Denton, 95 Ohio St. 333, 116 N. E. 452.

This question was before the Supreme Court of the United States, in the case of The fifth and sixth grounds of the motion Trustees Internal Improvement Fund of to dismiss, in so far as they question` the Florida v. Greenough, 105 U. S. 527, 26 L. right to appeal from a consent decree, are Ed. 1157, where it was held:

"The first question, however, is, whether these orders do or do not amount to a final decree, upon which an appeal lies to this court.

sound as abstract propositions, but the appeals now sought to be dismissed are not from any matters adjudicated by the consent decree.

Under these grounds the appellee contends | in which the appeal was taken. The form of that the principal creditor, the complainant the appeal in this case has received the sancin the main suit, having dismissed its ap- tion of this court, as well as being supportpeal, the only appellant before the court is ed by those of other jurisdictions. the defendant in the main suit, and that he cannot possibly be injured by the amount allowed to the receiver, and this appeal should be dismissed.

The case of Hazen v. Stevens, 60 Fla. 460, 53 South. 716, grew out of a bill brought by May Hazen against Smithie Stebbins, H. H. Stebbins, Lydia Hazen, Daniel Hazen, and [5, 6] The defendant in the main suit, Edward S. Hazen, for a receiver to take being the debtor, has an interest in seeing charge of and manage an orange grove. that the proceeds of his property are prop- C. W. Stevens was appointed receiver, and, erly applied to the extinguishment of his from an order of the court fixing his compendebt as far as possible, and any amount tak-sation, the complainant May Hazen and two en from the assets which should be distribut- of the defendants took an appeal and named ed among his creditors, prevents the reduc C. W. Stevens the receiver, as the only aption of his indebtedness to that extent. A pellee. debtor is or should be deeply interested in paying the debts so far as his assets will permit, and is interested in seeing that these assets are not improperly diverted. We think, therefore, that his interest in the con-ence," it would be jurisdictional. servation and distribution of the assets, gives him an appealable interest in orders or decrees that divert these assets to other purposes.

Upon this subject what was said by the court in Reeves v. Hastings, 61 Minn. 254, 63 N. W. 633, is pertinent:

If, as contended by the appellee, that in making Paul R. Scott the appellee, "the appellants have undertaken to bring before this court a suit that in fact had no exist

The appeal in Hazen v. Stevens Case, supra, was taken in the same way; the original complainant and two of the defendants were made appellants and the receiver, Stevens, was made appellee.

If the contention of the appellee is sound, this court sua sponte would have dismissed the appeal. Instead of that, it entertained the appeal, and decided its merits.

"The respondent makes the point that the appellant is not an aggrieved party, and therefore cannot appeal from the order. We are of [7] The rule is settled in the Supreme the opinion that he is entitled to prosecute the Court of the United States that persons inappeal, for he is one of the parties whose cidentally interested in some branch of a property was taken possession of by the court cause are allowed to intervene for the purfor the benefit of his creditors, and he is di-pose of protecting their interests, and to go rectly interested in a proper administration of the trust estate. If it be admitted that in no event will any of the estate be returned to him, and that all of his creditors have filed releases, still he is interested in having his property applied to the payment of his creditors, and to prevent an improper and unlawful diversion of any part of it from the purposes for which the trust was created. By just so much as is unlawfully paid to the receiver will the balance remaining unpaid on his debts be increased. He may desire to pay this balance in case he is ever able to do so; at least, as an honest man, he ought to do it; and he has a right to have his creditors receive the full benefit of the trust estate, less necessary and lawful expenses and charges."

It is contended in the seventh and eighth grounds of the motion that, because the complainant below, who was one of the appellants, has caused the appeal to be dismissed as to itself, this appeal should be dis

missed.

The appeal complained of is joint and several, and the dismissal by the Theo. Hirsch Company cannot affect the right of the McDonald Furniture Company to maintain its appeal. The Theo. Hirsch Company having by the consent decree, received all it claimed, is not interested in the application of the assets, and is not affected by their depletion by the decree allowing compensation to the receiver.

into that court or be brought there on appeal when a final decision of their right or claim has been made by the court below. Williams v. Morgan, 111 U. S. 684, 4 Sup. Ct. 638, 28 L. Ed. 559. In that case the court cited several others where this practice was allowed. "We refer to the cases of Blossom v. Milwaukee Railroad, 1 Wall. 655, where a purchaser at a foreclosure sale was admitted to appeal; Minnesota Company v. St. Paul Company, 2 Wall. 609, 634, to the same effect; Hinckley v. Gilman, Clinton & Springfield Railroad, 94 U. S. 467, where a receiver was allowed to appeal from a decree against him to pay a sum of money in the cause in which he was appointed receiver; Sage v. Railroad Company, 96 U. S. 712, where parties interested were allowed to appeal from an order confirming a sale; Trustees v. Greenough, 105 U. S. 527, where an appeal from an order for allowance of costs and expenses to a complainant suing on behalf of a trust fund, was sustained; and Hovey v. McDonald, 109 U. S. 150, where an appeal was allowed to be brought against

a receiver from an order made in his favor."

Williams v. Morgan, supra.

For the reasons stated, the motion to dismiss the appeal is denied.

TAYLOR, C. J., and BROWNE, J., concur.
WHITFIELD, P. J., and WEST and TER-

(100 So.)

"Total insurance permitted, warranted, concurrent herewith, including this policy, as fol-000, but denies that the assured had any

defendant, when it issued the policy sued on, had knowledge that the assured then had in effect upon said stock of merchandise additional insurance, as averred in the plea, and having such knowledge, acquiesced in and consented to the additional insurance then in effect upon the property and waived any right which it might have had and is esError to Circuit Court, Pinellas County; topped to claim that the clause in the policy M. A. McMullen, Judge.

amend the replications. Other pleas and Counsel for plaintiff declined to replications were withdrawn, whereupon judgment was entered against the plaintiff in favor of the defendant upon the demurrers to the replications to the plea. Plaintiff took writ of error.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 SO.-11

In the brief of plaintiff in error it is said I were other policies of insurance on the propthat the sole question presented is whether erty; and failure to object was a waiver on or not the insurer has waived objections to the part of the companies of the provisions of the violation of the concurrent insurance clause of the policy and is estopped to plead as a defense to the action on the policy the violation of the provisions of such policy prohibiting the assured from procuring other insurance.

The policy sued on is made a part of the declaration. It contains the following provisions:

"This insurance is effected subject to the following conditions which are hereby made warranties by the assured, and are accepted as part of this contract:

their policy as to other insurance. The words and characters '$ x Total concurrent insurance permitted,' do not of themselves give permission for any additional insurance, they are not an endorsement of an agreement for other insurance, and they are not a waiver of the provisions of the policy as to other insurance; and the answer, 'Yes,' to the question 'are the policies concurrent?' as it appears in this case in the daily report of the agents to the companies, did not of itself, nor when taken in connection with other portions of the report in this case, convey to the companies information that other policies of insurance on the property were in existence. Even if the knowledge of the agent Groover as to the existence of the $600 London & Lancashire policy when the policy sued on was issued is a waiver by the companies as to the London & Lancashire policy, it is not shown that the agent Groover had any knowledge of the $1,000 Hamburg-Bremen policy, and as there is no showing that the provisions of the policy sued on as to other in"This entire policy, unless otherwise provid-surance were complied with in regard to the ed by agreement indorsed hereon or added Hamburg-Bremen policy and no waiver therehereto, shall be void if the insured now has, or of is shown, the second plea of the defendants shall hereafter make or procure any other con- is sustained, and the plaintiffs are not entitled tract of insurance, whether valid or not, on to recover on the policy." property covered in whole or in part by this policy."

on

"Total insurance permitted, warranted, concurrent herewith, including this policy, as follows: $- on stock; $ on furniture and fixtures; $"It is understood and agreed that no insurance in addition is permitted to this policy unless the total insurance, including this policy, is entered in paragraph above."

Upon the authority of that case knowledge of the insurer of other insurance upon the property insured at the time of the issuance of the policy, with the omission to insert in the concurrent or additional in

It is contended on behalf of plaintiff in error that because the blank spaces in the concurrent insurance clause are not filled in, the amount of concurrent insurance permit-surance clause of the policy the amount or ted is not limited by the policy, and that the insurer is estopped to deny the validity of insurance obtained by the assured subsequent to the issuance of the policy sued on. The reply of the defendant in error is that, while it concedes that it must be held to have waived any right to question the validity of insurance existing upon the property insured at the time of the issuance of the policy sued on of which it had knowledge, it did not waive and is not estopped to deny the validity of insurance subsequently obtained of which it had no knowledge and which is expressly forbidden by the language of the policy.

In Philadelphia Underwriters' Ins. Co. v. Bigelow, 48 Fla. 105, 37 South. 210, the court said:

"It is also contended that the words and characters '$ x Total concurrent insurance permitted,' contained on a slip attached to the policy, show that concurrent insurance was meant to be allowed; or was known to exist, but the amount of the same was omitted or not specified, and therefore waived by the company; and that if this is inconclusive, that the report made by the agents to the companies in which to the question 'are the policies concurrent?' the answer, 'Yes,' is given, conclusively shows that upon receipt of this report the companies were thereby informed that there

that no additional concurrent insurance is permitted, is not, as to policies subsequently issued upon the property of which the insurer had no notice, a waiver, nor is the insurer as to such policies estopped from asserting or relying upon the express provisions of the policy that "no insurance in addition is permitted to this policy unless the total insurance, including this policy, is entered in paragraph above" (meaning the additional concurrent insurance clause), and declaring the policy to be void if the assured "shall hereafter make or procure" any other contract of insurance on the property covered unless provided by agreement endorsed on the policy.

In Eagle Fire Co. v. Lewallen & Co., 56 Fla. 246, 47 South. 947, "the other additional insurance was procured and notice thereof was given to the agent" of the insurer. The agent did not communicate to his company knowledge of the other or additional insurance until after the loss, but notice to the agent was held to be notice to the company. The judgment is affirmed.