Cole v. Walker Fertilizer Co.
| Decision Date | 29 April 1941 |
| Citation | 147 Fla. 1,1 So.2d 864 |
| Parties | COLE et ux v. WALKER FERTILIZER CO., for Use and Benefit of WALKER. |
| Court | Florida Supreme Court |
Rehearing Denied May 16, 1941.
En Banc.
E. W. & R. C. Davis, of Orlando, Evans, Mershon & Sawyer of Miami, and W. Davis and Giles & Gurney, all of Orlando for plaintiffs in error.
Osborne Copp & Markham, H. P. Osborne, and J. Henson Markham, all of Jacksonville, for defendant in error.
On October 22 1940, this Court entered an order on the sworn petition of William Cole and Mary E. Cole, plaintiffs in error, granting to them the right and privilege of applying to one of the Judges of the Circuit Court of Orange County, Florida, for the issuance of writ of error coram nobis addressed to that final judgment rendered between the parties hereto in the Circuit Court of Orange County.
On November 5 1940, pursuant to the abovesaid order entered by this Court, William Cole and Mary E. Cole filed their petition for a writ of error coram nobis addressed to the Honorable Millard B. Smith, a Judge of the Circuit Court, and directed to the Walker Fertilizer Company for the use and benefit of Rosa Walker, the alleged widow of Willie Walker, deceased, and the said petition, in part, made it to appear that the Walker Fertilizer Company, for the use and benefit of Rosa Walker, widow of Willie Walker, deceased, on November 7, 1938, filed its declaration in the Circuit Court of Orange County against William Cole and Mary E. Cole, alleging therein, among other things, that Rosa Walker was the surviving widow of Willie Walker, deceased, and that Willie Walker lost his life through the negligence of William Cole and Mary E. Cole; and to the said declaration William Cole and Mary E. Cole filed pleas to each count thereof tendering the issues: (a) They were not guilty; and (b) that the deceased, Willie Walker, contributed to the injury complained of; and on the issues made the case was submitted to a jury on the 1st day of February, 1939; and, after hearing the testimony, argument of counsel and instructions of the court upon the law, returned a verdict in behalf the Walker Fertilizer Company, for the use and benefit Rosa Walker, widow.
On the 2nd day of March, 1939, the Judge of said Court entered a judgment in favor of the Walker Fertilizer Company, for the use and benefit of Rosa Walker, widow of Willie Walker, deceased, in the sum of $7,500, together with costs of the case taxed at $152.05. On the 4th day of February, 1939, William Cole and Mary E. Cole filed their petition for a new trial; and on the 18th day of March, 1939, a petition for leave to amend said motion was by the lower court granted; and subsequently on April 12, 1939, a further petition for leave to amend the motion for a new trial was by the lower court, granted. On the 24th day of April, 1939, the Judge of said Court, after hearing arguments on the motion for a new trial, with amendments thereto, made and entered an order granting the said motion for a new trial and vacating and annulling the judgment previously entered on the 2nd day of March, 1939.
An appeal was perfected from the order dated April 24, 1939, granting the motion for a new trial, amendments thereto, and vacating and annulling the said judgment entered on the 2nd day of March, 1939, to this Court and the same was presented to, heard and considered by this court and on April 26, 1940, entered its opinion and judgment reversing the order dated April 24, 1939, granting a new trial and directed the lower court to enter a judgment to conform to the verdict previously rendered by the jury, unless a motion in arrest of judgment or for judgment non obstante veredicto should be made to prevail. See Walker Fertilizer Co. v. Cole, 197 So. 777, 132 A.L.R. 536. Pursuant thereto the lower court, on November 1, 1940, entered a final judgment on said verdict in behalf of Walker Fertilizer Company for the use and benefit of Rosa Walker, widow of Willie Walker, deceased, and against William Cole and Mary E. Cole.
The petition for writ of error coram nobis filed in the lower court recited that Rosa Walker was not the widow and had never been the wife of Willie Walker, deceased, but in truth and in fact Rosa Walker was the lawful wife of Arto Holloman prior to and at the time of the attempted marriage with Willie Walker, and that Arto Holloman was living and a divorce had never been obtained and under the laws of Florida she was without the lawful right to maintain a suit to recover for the negligent death of her alleged deceased husband, Willie Walker, and as a matter of law no cause of action existed in her behalf against William Cole and Mary E. Cole, and that the right of Walker Fertilizer Company to maintain the suit was predicated upon the relationship of Rosa Walker to her alleged deceased husband, Willie Walker. Affidavits, copy of marriage certificates and other exhibits of record are attached to and made a part of the petition, or by reference thereto are made a part of the petition for writ of error coram nobis.
It is further alleged that at the time of the pretended marriage between Willie Walker and Rosa Walker the said Willie Walker had a living wife and as to said marriage no divorce had been obtained and that she was commonly known under the name of Kate Harris and is now still living and that the said Kate Harris is the legal widow of Willie Walker; that the foregoing facts were not discovered or obtained until March 15, 1939, and the information appearing in the petition could not have been known by reasonable diligence and the lower court had no knowledge of said facts at the time of the trial of said cause and that if said facts had been known, no judgment could or would have been entered in behalf of the Walker Fertilizer Company for the use and benefit of Rosa Walker, widow of Willie Walker. The petition prays for the issuance of writ of coram nobis directed to the Walker Fertilizer Company, for itself and for the use and benefit of Rosa Walker, widow of said Willie Walker, deceased, requiring it on a day certain therein to be named to show cause why said judgment should not be set aside and annulled; that upon the taking of testimony, should the same be rendered necessary by the pleadings, that the Circuit Court, after being fully advised in the premises, would enter an order annulling, vacating and setting aside the judgments previously entered, and discharging the defendants, William Cole and Mary E. Cole.
On the 15th day of November, 1940, the Honorable Millard B. Smith, Circuit Judge, entered an order on the said petition and the same is in words and figures following, to-wit: 'Within petition having come on to be heard--all parties being present by counsel, it is Ordered and Adjudged that said petition be and same is hereby denied.
'Done and Ordered at Orlando, Florida, this 15th day of November, A. D., 1940.
'M. B. Smith, Judge.'
The transcript shows that on the 16th day of November, A. D. 1940, the Walker Fertilizer Company filed in the Circuit Court of Orange County, Florida, a response to the petition for writ of error coram nobis and objected to the granting thereof as prayed for an grounds: 1st: The subject matter of the petition had been adversely adjudicated by the Supreme Court of Florida in the case of Walker Fertilizer Co. v. Cole, 197 So. 777, 132 A.L.R. 536; while the 2nd, 3rd and 4th objections to the issuance of the writ of error coram nobis referred to the pleadings, questions of fact, and counsel's construction and interpretation of the holding of this Court in the case of Walker Fertilizer Co. v. Cole, supra; and in the 5th ground the contention is made that the writ of error coram nobis did not issue within six months after March 3, 1939, the date of the rendition of the judgment for the plaintiff and is thereby precluded; that William Cole and Mary E. Cole are further precluded for the want or lack of diligence prior to the rendition of the verdict in ascertaining the marital status of Rosa Walker, the alleged wife of Willie Walker, and that Arto Holloman had lived across the street in Orlando from Rosa Walker and Willie Walker continuously since the cause of action accrued and their failure to investigate and learn the relationship of Rosa Walker and Willie Walker is a want of diligence which precludes the issuance of said writ of error coram nobis.
Other objections were made to the issuance of the writ and these several objections so made were before the Honorable Millard B. Smith, Circuit Judge, on November 15, 1940, at the time of the entry of an order denying the petition, but the grounds or reasons in the mind of the lower court for the denial of the petition were not set forth in the order supra.
An appeal has been perfected to this Court and it is here contended that the order dated November...
To continue reading
Request your trial
-
Redwing Carriers, Inc. v. Carter
...State, 128 Fla. 319, 174 So. 589; Shayne v. Pike, 131 Fla. 71, 178 So. 903, motion denied 131 Fla. 862, 180 So. 382; Cole v. Walker Fertilizer Co., 147 Fla. 1, 1 So.2d 864; Shelby v. State, 155 Fla. 182, 20 So.2d 500, 21 So.2d 787; Kent v. Marvin, Fla., 59 So.2d 791. And except for the fact......
-
Baker v. State
...... The function of a. writ of error coram nobis was reiterated in the recent case. of Cole v. Walker Fertilizer Co., 147 Fla. 1, 1. So.2d 864, 866, when we said:. . . 'The ......
-
Deauville Realty Co. v. Tobin, 58-495
...a ground for relief on writ of error coram nobis. See Baker v. Peavy-Wilson Lumber Co., 146 Fla. 217, 200 So. 528; Cole v. Walker Fertilizer Co., 147 Fla. 1, 1 So.2d 864; Thompson v. State, 154 Fla. 769, 18 So.2d 788; 7 Fla.Jur., Coram Nobis, § 13.2 The ruling of the trial judge on evidence......
-
State v. Matera
...to do so. * * *'8 Clarke v. Burke, 440 F.2d 853 (CCA 7th 1971); Fuller v. Wainwright, 238 So.2d 65 (Fla.1970).9 Cole v. Walker Fertilizer Co., 147 Fla. 1, 1 So.2d 864, 866 (1941): 'The function of a writ of error coram nobis is to bring to the attention of the court, for correction, some ma......