Burkhart v. Circuit Court of Eleventh Judicial Circuit

• Decision Date: 11 March 1941
• Citation: 1 So.2d 872,146 Fla. 457
• Parties: BURKHART v. CIRCUIT COURT OF ELEVENTH JUDICIAL CIRCUIT et al.
• Court: Florida Supreme Court

1 So.2d 872

146 Fla. 457

BURKHART v. CIRCUIT COURT OF ELEVENTH JUDICIAL CIRCUIT et al.

Florida Supreme Court

March 11, 1941

Rehearing Denied April 18, 1941.

En Banc.

Thomas J. Ellis, of Tallahassee, and Kunkel & White, of Miami, for petitioner.

A. C Franks, of Miami, for respondents.

CHAPMAN, Justice.

This is a case of original jurisdiction in prohibition. The petition for the writ alleges, in part, that the Honorable Worth W. Trammell and Arthur Gomez, Judges of the Circuit Court of Dade County Florida, have acted and are continuing to act contrary to law in the case of Burkhart v. Burkhart, Fla., 197 So 730, a proceeding for divorce, temporary alimony attorneys' fees and court costs pendente lite now pending in the Circuit Court of Dade County, Florida.

The petition for writ of prohibition recites that Leonora F. Burkhart, on January 11, 1939, filed a bill of complaint in the Circuit Court of Dade County, Florida, against William S. Burkhart praying for a decree of divorce, alimony and attorneys' fees; that on April 1, 1939, an order of publication was issued and published, which ordered William S. Burkhart to appear on May 1, 1939; that no summons or subpoena in chancery or other process was issued or served on William S. Burkhart; and that he has never appeared or answered the bill of complaint or otherwise submitted himself to the jurisdiction of the Circuit Court of Dade County; that on May 1, 1939, William S. Burkhart filed a special appearance and motion to quash the order for constructive service and to dismiss the proceedings, and limited his special appearance solely for the purpose of contesting the jurisdiction of the court, and in this manner raised the question of the right of Leonora F. Burkhart to maintain the divorce suit, claim for alimony, attorneys' fees and costs pendente lite, upon the theory that she was not a resident of the State of, Florida for a period of ninety days prior to the filing of said suit; the issues were referred to a master, who took the evidence of the parties and upon the report coming in, the lower court held that the plaintiff was a resident of Florida, and had a right to maintain sait suit and that the court had jurisdiction over the person of the defendant; on appeal therefrom this court on August 2, 1940, 197 So. 730, by its opinion affirmed the findings of the lower court; on September 20, 1940, a petition for rehearing was denied, and a mandate issued accordingly.

The record discloses that on December 4, 1940, Honorable Arthur Gomez, Circuit Judge, decreed the amount of a reasonable attorneys' fee for the plaintiff to be the sum of $1,500, and directed William S. Burkhart to pay the same, and upon a default of the payment of said sum within five days from and after December 4, 1940, that an execution issue therefor; and on the same date allowed plaintiff temporary alimony pending the entry of a final decree in the sum of $250 per month beginning on December 2, 1940; and that other material questions affecting the parties would be reserved until final hearing. That on January 3, 1941, Honorable Worth W. Trammell, Circuit Judge, decreed that there was due Leonora F. Burkhart by William S. Burkhart as temporary alimony under the decree dated December 14, 1940, the total sum of $500, and entered a final judgment for said amount and directed the issuance of a writ of execution therefor.

The petition for a writ of prohibition further recites that certain property of William S. Burkhart has been levied upon under the two orders dated December 4, 1940, and January 3, 1941, respectively, and that the property of the petitioner William S. Burkhart located in Dade County, Florida, is now being advertised for sale and that the proceeding is now being taken in the lower court without personal service of process on William S. Burkhart, but upon constructive service had.

It is further recited that the lower court is without jurisdiction over the person of William S. Burkhart and was without jurisdiction to enter said orders in the chancery proceeding, and that the remedy by appeal in behalf of petitioner therefrom is not plain, speedy and adequate, and that the proceedings in the sale of said property located in Dade County, Florida, under the aforesaid chancery orders is without due process of law and contrary to the fundamental guaranties of the State and Federal Constitutions.

The Honorable Worth W. Trammell, Circuit Judge, answered the rule nisi issued on the aforesaid petition for writ of prohibition and admitted the signing and entry of the order dated January 3, 1941, in pursuance of his constitutional authority as a Judge of the Circuit Court of Dade County. A similar answer was filed by the Honorable Arthur Gomez. An answer and demurrer by the respondent Leonora F. Burkhart were filed and one of the grounds of said demurrer was that the petition for writ of prohibition failed to set out facts authorizing the issuance thereof; and an additional ground was that the petitioner has a plain, complete and adequate remedy by appeal from said orders which were entered by the lower court in the exercise of its constitutional authority; that facts set up in the petition for writ of prohibition have arisen subsequent to the going down of the mandate of this court on a former appeal.

It is established law in Florida that the writ of prohibition is that process by which a superior court prevents an inferior court or tribunal from usurping or exercising a jurisdiction with which it has not been vested by law. It is an extraordinary writ because it only issues when the party seeking it is without other adequate means of redress for the wrong about to be inflicted by the act of the inferior tribunal. It is a prerogative writ, used with great caution, where the ordinary remedies provided by law are not applicable or adequate. A distinction is recognized by the authorities between the assumption of a jurisdiction, to which the court has no legal claim, and the mere erroneous exercise of a jurisdiction with which the court is invested. See Crill v. State Road Department, 96 Fla. 110, 117 So. 795; Curtis v. Albritton, 101 Fla. 853, 132 so. 677.

It is contended that a levy of execution under the chancery orders for the nonpayment of alimony and attorneys' fees dated December 4, 1940, and January 3, 1941, on the property of William S. Burkhart situated in dade County, and the advertisement of the same for sale without personal service of process on Burkhart, and thereby subjecting him to great expense and irreparable damages, is without due process of law and contrary to the guaranties of the State, Const. § 12, and Federal Constitution, Amend. 14, and that the lower court should be prohibited from usurping or exercising a jurisdiction with which it has not been invested by law. Each of the orders here challenged was by the lower court entered in the exercise of its chancery jurisdiction on constructive service for temporary alimony granted the wife and for attorneys' fees ordered paid in connection with the litigation. The property of the defendant Burkhart located in Dade County was being advertised for sale and the proceeds arising from the sale the items named in the orders were to be paid.

The courts of Florida have the power to grant decrees of divorce, alimony, temporary and permanent, and attorneys' fees. It is unnecessary to cite authorities to sustain this statement. the constructive service on Burkhart, it is contended, does not as a matter of law authorize the Circuit Court to make the chancery orders, supra, and permit a levy thereunder and sale of the property of Brukhart situated in Dade County; and that the State and Federal Constitutions are being violated and such a proceeding would be authorized only when the defendant is personally served with process and the court obtains jurisdiction.

The answer to this contention is the ruling of the Supreme Court of the United States in the case of Pennington v. Fourth Nat. Bank, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713, L.R.A.1917F, 1159, where the facts are, viz: Mrs. Pennington obtained a divorce and alimony in a state court of Ohio and the Fourth National Bank of Cincinnati was made defendant with her husband, and the bank was enjoined from paying out any part of the deposits appearing to the credit of the husband. The bank made payments directly to the wife in compliance with orders of the court. The husband presented to the bank a check for the full amount of the deposit, asserting that the court's orders deprived him of his property without due process of law, in violation of the Fourteenth Amendment, and were void, since he was a nonresident of Ohio and had not been personally served with process within the state, had not appeared in the suit, and had been served by publication only. Payment of the check was refused, when Pennington brought suit in another Ohio court against the bank for the full amount of the deposit. Judgment was rendered for the bank and Pennington took writ of error to the Court of Appeals for Hamilton County, and thence to the Supreme Court of Ohio, where the judgments were affirmed. 92 Ohio St. 517, 112 N.E. 1085. The case was then to the Supreme Court of the United States, where Pennington claimed that his constitutional rights had been violated. The Supreme Court of the United States sustained the judgment of the Ohio Supreme Court, and in so doing, in part, said:

'The 14th Amendment did not, in guarantying due process of law, abridge the jurisdiction which a state possessed over property within its borders, regardless of the residence or presence of the owner. That jurisdiction extends alike to tangible and to intangible property. Indebtedness due from a resident to a...