Dickinson v. Segal, No. 37547

• Court: United States State Supreme Court of Florida
• Writing for the Court: DREW; ERVIN; ROBERTS
• Citation: 219 So.2d 435
• Parties: Fred O. DICKINSON, Jr., as Comptroller of the State of Florida, Appellant, v. William SEGAL et al., Appellees.
• Decision Date: 19 February 1969
• Docket Number: No. 37547

Page 435

219 So.2d 435 Fred O. DICKINSON, Jr., as Comptroller of the State of Florida, Appellant,
v.
William SEGAL et al., Appellees. No. 37547. Supreme Court of Florida. Feb. 19, 1969.
Rehearing Denied March 17, 1969.

Earl Faircloth, Atty. Gen., and Larry Levy, Asst. Atty. Gen., for appellant.

Thomas C. Britton, County Atty., and John G. Fletcher, Asst. County Atty., for appellees.

DREW, Justice.

The question here is whether the trial court may permit a stranger to the record in that court to intervene 'for purposes of appeal' after the entry of the final decree.

William Segal and his wife filed a mandamus proceeding against the tax assessor of Dade County to compel the assessor to comply with the provisions of F.S. Section 193.271, F.S.A. ¹ Return was filed by the tax assessor alleging, among other things,

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that such act was unconstitutional. On application for peremptory writ the trial court entered a final judgment holding that F.S. Section 193.271, F.S.A., was 'unconstitutional, null and void,' denying the peremptory writ and dissolving the previously issued alternative writ. It is pertinent here to note that this final judgment was entered April 15th, 1968. Such judgment terminated the proceedings in the trial court.

On May 21, 1968 (the time for post trial motions having long since expired), a petition was filed in the cause by the Comptroller--a complete stranger to the record--'to intervene for the purposes of appeal.' On June 14th the trial court entered its order granting such petition to intervene. ² Appeal was filed the same day by the Comptroller. The basic error urged by the Comptroller--and the only error argued--is the trial court's conclusion that F.S. Section 193.271, F.S.A., was unconstitutional.

The question of the propriety of this appeal has been raised by this Court of its own motion. The question has been orally argued by the attorney for the Comptroller and the Tax Assessor. The original petitioners, the Segals, have neither filed briefs nor appeared in such oral argument. They have not joined in the appeal nor questioned the correctness of the decree below. ³

The trial court has the power to allow interventions in 'pending litigation.' ⁴ This means litigation pending before the trial court. The effect of the order, allowing intervention 'for the purpose of appeal' is obviously an order allowing a stranger to the record below to participate not in proceedings there, but in proceedings here. With the one exception hereafter discussed, we have been cited no authority for this and our own investigation reveals none; on the contrary, the general rule--universally--is that intervention may not be allowed after final judgment. ⁵ With one exception,

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which we will later discuss, this has consistently been the view in this jurisdiction. ⁶

Moreover, this Court has consistently refused to allow intervention in appeals here by strangers to the record. In Lee v. Beck ⁷ the Court specifically rejected such a petition, observing 'that petitioner herein has never become a party to, nor bound by, ⁸ the decree appealed from in this particular case wherein he seeks leave to intervene.'

The exception to the general rule that intervention may not be allowed after entry of final judgment is stated in American Jurisprudence: 'There are cases where, In the interests of justice, leave to intervene will be granted after final decree when to do so would in no wise injuriously affect the original litigants.' ⁹ In Wags Transportation System v. City of Miami Beach ¹⁰ this language was used and the Peoples Bank Case cited in support of an order allowing intervention 'for the purpose of taking an appeal.' In that case the petition was filed by several owners of property zoned as residential to question a decree changing the zoning of adjacent or nearby properties for hotel purposes thereby resulting in irreparable injury to them. This Court there recognized the general rule but applied the exception 'in the interests of

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justice' and permitted intervention observing:

'We think the petition to intervene showed such an interest in the res that the ends of justice require that it be granted. It was clearly within the exception to the general rule. Nothing is more sacred to one than his home and the petitioners should have been permitted to come in and bring their rights in this to the attention of the court. We do not overlook the fact that intervention is in subordination to and in recognition of the main proceeding. No new issues can be injected but none were attempted in this case. The home often has intrinsic and other values that no one knows of but the owner. In a case where it is sought to turn these values into other channels, it would be contrary to every element of due process to hold that the owner should not be permitted to intervene and bring or help bring these factors to the attention of the court.'

While it would have been the better procedure in the above case for the property owner to have...