The petition for rehearing in this case should be denied not only because the petition violates the rule obtaining in this State controlling such petitions but the views of law expressed and argued in the petition as they apply to the case at bar are not sound. See Jones v. Fox, 23 Fla. 462, 2 South. Rep. 853; Hull v. Burr, 58 Fla. 475, 50 South. Rep. 768; Malsby v. Gamble, 61 Fla. 327, 54 South. Rep. 766; Stewart v. Preston,80 Fla. 479, 86 South. Rep. 348; Payne v. Ivey, 83 Fla. 436, 93 South. Rep. 143; A. C. L. R. Co. v. Lakeland, 94 Fla. 347, 115 South. Rep. 669.
The petition consists of nothing but an argument in which counsel take issue with the court not only upon the principles of law announced but upon their proper application to the case at bar. The petition is merely a reargument of the case in advance of a permit from the court for such argument. Such a petition this Court has held to be violative of the rule and will be dismissed without *Page 443 further consideration. Finlayson v. Lipscomb, 15 Fla. 558; Jones v. Fox, supra; Sauls v. Freeman, 24 Fla. 225, 4 South. Rep. 577.
The interesting but obvious argument of the dissenting judges in the case of DaCosta v. Dibble, 45 Fla. 225, 33 South. Rep. 466, is by no means convincing. Just what is meant by saying that the rule "is broad enough to require the court to grant a rehearing, when properly applied for, upon any ground, whether of law or fact, that would render the judgment erroneous" is not very clear. How it is possible to determine that an error of law has been committed without reconsidering the case or accepting the statement in the petition for a rehearing as sufficient the learned Justices did not explain.
The facetious remarks about the "divine attribute of infallibility" assumed to be claimed by those members of the court in that case who were not favorable to the granting of the petition were more surprising than logical. A decision of the appellate court as well as a trial court is presumed to be right. The decision is supposed to follow upon deliberate and mature consideration. A petition for rehearing is just what its name implies and nothing more: a request that the cause be again considered not upon the ground that in the opinion of the losing party the court has erred in applying a principle of law but upon the ground that it has omitted consideration of a fact or question of law possibly which if considered would lead to a different decision. The petition should set forth clearly what fact was omitted in the court's consideration of the cause or what principle of law it failed to notice which was applicable to the facts and pleadings. If the rule advocated by the dissenting judges in the case mentioned obtained there would be no end to rehearings because the losing party on each decision could with propriety say that as the court may not console itself by imagining that it possesses the divine attribute of infallibility its decision *Page 444 on the first, second or third rehearing is no nearer infallibility than the original hearing, therefore the petition should be granted.
Certainly it needs no argument to convince even those who are not reasonably sure of the accuracy of their decisions and are not quite sure of their ability to give a reason for the faith within them, that an argument of the case in the petition is premature as being made without permission.
If the practice in such matters is to obtain in this State which the court apparently approves by the granting of the petition in this case it cannot with propriety and equal fairness to all litigants before this court ever deny with consistent adherence to the principle of impartiality any petition for a rehearing which rests upon the opinion of the losing party that the court has erred in applying the law or that its decision rests upon a fallacious opinion and argument.
The argument contained in the petition for a rehearing is neither applicable to the issues upon which the case was tried nor sound upon the questions of law which the petition supposes were involved in the cause. The original opinion points out that the action rested as the declaration alleged upon a promissory note executed by certain persons who assumed to act in a corporate capacity without having been clothed with corporate existence or authority in this State. The first plea was argumentative and tendered no issue. The note was either the note of the defendants or it was not their note. If it was sought to interpose the defense that it was not their obligation the plea should have so stated. The second plea was bad for the same reason. It was argumentative and presented no issuable fact constituting a defense to the declaration.
The corporation either had authority to transact business in this state or it did not have authority to do so and as the transaction was a business transaction in this State *Page 445 the note was the corporation's note with authority in the corporation to transact business here or it was not, but the plea presented no such issue and the court so held.
The third and last plea as the opinion points out was merely an admission that the defendants executed the note while acting for a New York Corporation which transacted the business in this State and that it was not authorized to do so but it was its only business transaction in this State.
The petition for rehearing states that in the case of Branham, 35 Fla. 297, 17 South. Rep. 552, a corporation was not in existence. On the contrary the corporation was in existence and the opinion of the court expressly stated that it was organized and chartered under the laws of Tennessee. The opinion then states that "a corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. That it exists only in contemplation of law, and by force of law; and where that law ceases to operate, the corporation can have no existence. It must dwell in the place of its creation, and can not migrate to another sovereignty."
Upon that principle, which is the law today in this and other jurisdictions, the court merely held that the persons assuming to act in a corporate capacity in a State where they have not been clothed with corporate existence and authority cannot be recognized as a legally constituted corporation "though they may have been duly incorporated in another State, and that such persons, in the State where they assume corporate capacity, will be treated as, and held to the responsibility of partners, both in courts of law and equity."
The majority opinion and the argument in the petition follow the moral, not legal, doctrine that as the transaction of business by the person assuming to act as a New York corporation was the only business transaction it had in this State its offense was a little one and therefore excusable. So far as the record shows to the contrary the Broad-Albin *Page 446 Storage Company may have held a charter with a provision purporting to authorize it to transact business in Florida the statutes of this State to the contrary notwithstanding.
The case was tried upon the issue presented by the declaration that the defendants assumed to act as a corporation without being clothed with authority by the law of this State so to act. The pleas sought to avoid the liability of the defendants as partners by saying that they represented a corporation of New York State and acted for it. The court said the pleas were bad, constituted no defense. Neither the argument in the petition for rehearing nor the majority opinion shows the error of the trial court in holding the pleas to be bad.