Brown v. Oehler

• Decision Date: 21 February 1934
• Parties: BROWN v. OEHLER et al.
• Court: Florida Supreme Court

152 So. 862

114 Fla. 57

BROWN v. OEHLER et al.

Florida Supreme Court

February 21, 1934

On petition for leave to have further proceedings in the circuit court.

Permission for further proceedings in the circuit court denied.

For prior opinion, see 149 So. 521. Appeal from Circuit Court, Dade County; Uly O. Thompson, judge.

COUNSEL

Richard H. Hunt, of Miami, for appellant.

Howard W. McCay and Marshall F. Sanders, both of Miami, for appellees.

OPINION

PER CURIAM.

This is an application by W. B. Brown for permission to apply to the circuit court for permission to file a supplemental bill in the nature of a bill of review; the final decree in the cause having been heretofore brought to this court by appeal and here affirmed. See Brown v. Oehler, 149 So. 521.

A supplemental bill in the nature of a bill of review (now permissible in the form of a petition under the 1931 Chancery Act [Acts 1931, c. 14658]) is the appropriate method of accomplishing in equity that which at law can be duly accomplished by a writ of error coram nobis. In equity such a proceeding as is here invoked is the proper method of attacking for purpose of correction, a decree in equity which, it is alleged, was rendered on account of some error in fact which, if it had been known to the chancellor, would have prevented the entry of the decree attacked.

Like a writ of error coram nobis, a supplemental bill in the nature of a bill of review may be employed to invoke the jurisdiction of a court of chancery to recall one of its own adjudications made while some fact existed which if before the court, would have prevented the rendition of the final decree, and which, without any fault or negligence of the party presenting it, was not earlier presented to the chancellor. It cannot, however, after the decree to which it is addressed has been affirmed by the appellate court, be entertained without permission duly applied for and given by the appellate court which affirmed the decree. So the object of the present petition is to obtain such permission in the present case to reopen the final decree heretofore affirmed by this court on July 17, 1932.

Our conclusion is that the returns to the rule to show cause why permission to proceed should not be given as prayed constitute a sufficient showing of cause why the permission in this case should not be granted. The case was finally disposed of here on the 6th day of September, 1933....