Opinion
No. F-101.
January 12, 1965.
Appeal from the Circuit Court for Duval County.
Gambrell, Harlan, Russell, Moye Richardson, Atlanta, Ga., and Marks, Gray, Yates, Conroy Gibbs, Jacksonville, for appellant.
Mathews, Osborne Ehrlich, Jacksonville, for appellees.
After this appeal was lodged in this court the parties, by their respective counsel, filed in this court a stipulation entered into between them in the following words, to wit:
"The parties to this appeal, hereby represent and show unto this Court that the summary final judgment entered by the Circuit Court in and for Duval County, Florida, from which the appeal in this cause is taken, was entered by that court upon the ground that appellee was estopped from denying the coverage of a certain policy of liability insurance by a summary final judgment entered by the United States District Court for the Middle District of Florida, which judgment was adverse to the appellant on the identical issue which the appellant sought to raise in the court below. Further the parties represent and show that the said summary final judgment entered by the United States District Court is now on appeal to the United States Court of Appeals for the Fifth Circuit. In the event said summary final judgment is affirmed finally by the United States Courts, all questions presented in this appeal will become moot and if the said summary final judgment should be reversed by the United States Courts, the appellant and garnishee in this cause would then be entitled to the relief provided by Rule 1.38(b) (5). The parties recognize that in the normal course of events the issues between them will be finally decided before this court could reach a consideration of the merits on this appeal. Upon this representation the parties, therefore, stipulate as follows:
"1. In the event the summary final judgment entered by the United States District Court for the Middle District of Florida on June 27, 1963, [Houston Fire Casualty Ins. Co. v. Ivens, 36 F.R.D. 450] Case No. 4943-Civ-J, now on appeal to the United States Court of Appeals for the Fifth Circuit [ 338 F.2d 452] shall be finally affirmed, the parties hereto will move the court to affirmed the judgment of the Circuit Court in and for Duval County, Florida, or to dismiss this appeal.
"2. In the event the said summary final judgment entered by the United States District Court shall not be finally affirmed the parties hereto will jointly move this court to reverse the judgment from which this appeal is taken and to remand the cause to the court below for further proceedings upon the ground that pending a decision on the merits the appellant, garnishee, had become entitled to relief from the judgment of the court below because the judgment upon which the same was based had been reversed.
"Upon the foregoing stipulation the parties jointly move the court to stay all further proceedings in this appeal, including the transmittal of the record on appeal to this court and the filing of briefs by the parties."
The parties have now filed in the cause a joint motion in which they represent to the court that the judgment of the United States District Court for the Middle District of Florida mentioned in the above quoted stipulation was affirmed by the United States Court of Appeals for the Fifth Circuit by opinion dated October 29, 1964, Houston Fire Casualty Ins. Co. v. Ivens, 338 F.2d 452. Pursuant to the agreement of the parties as set forth in the above quoted stipulation the judgment hereby appealed is affirmed.
Affirmed.
CARROLL, DONALD K., Acting C.J., and WIGGINTON and RAWLS, JJ., concur.