Estate of Kionka, In re

Decision Date22 June 1960
Citation121 So.2d 644
PartiesIn re ESTATE of Anna Z. KIONKA, Deceased. Margaret Ann HEBBARD, Appellant, v. Walter R. ZIEGLER, Executor of the last Will and Testament of Anna Z. Kionka, Robert E. Trapp, Lloyd F. Kruckemyer, and Albert H. D. Beaslski, as President, Secretary and Pastor, respectively, of the Congregation of Trinity Evangelical Lutheran Church of Orlando, Florida, Appellees
CourtFlorida Supreme Court

An appeal from the District Court of Appeal, Second District.

For opinion of District Court of Appeal, Second District, see 113 So.2d 603.

Robert J. Bishop of Bishop & Bornstein, Orlando, for appellants.

Stephen R. Magyar, Orlando, for Walter R. Ziegler, Executor.

Sanders, McEwan, Schwarz & Mims, Orlando, for Robert E. Trapp, Lloyd F. Kruckemyer and Albert H. D. Besalski, as President, Secretary and Pastor, respectively of Congregation of Trinity Evangelical Lutheran Church of Orlando, Florida, appellees.

PER CURIAM.

Affirmed.

THOMAS, C. J., TERRELL, HOBSON, ROBERTS and DREW, JJ., and SMITH, Circuit Judge, concur.

O'CONNELL, J., concurs specially.

O'CONNELL, Justice (concurring specially).

I concur in the judgment of affirmance; however, because of the jurisdictional question involved I wish to express the reasoning which leads me to the conclusion that we have jurisdiction and therefore can affirm the decision involved.

This is an appeal from that decision of the District Court of Appeal, Second District, reported in 113 So.2d 603. The facts of this cause are fully set forth in the case as reported. The opinion determined that certain property owned by Anna Z. Kionka at the time of her death was not homestead property under § 1, Art. X, Fla.Const., F.S.A., and therefore could be devised by will.

The first question to be determined is whether we have jurisdiction to entertain this cause as an appeal from the decision of the district court.

The jurisdiction of this Court to hear appeals from decisions of the district courts is defined in Section 4(2), Article V, Florida Constitution, and reads:

'* * * Appeals from district courts of appeal may be taken to the supreme court, as a matter of right, only from decisions initially passing upon the validity of a state statute or a federal statute or treaty, or initially construing a controlling provision of the Florida or federal constitution. * * *' (Emphasis added.)

Appellant contends that the district court in its decision 'initially' construed Section 1, Article X, Florida Constitution, in that the district court's decision was the first construction of that constitutional provision by that district court and that the holding or construction was 'the first of its kind on the subject involved.'

Appellees on the other hand contend that the district court did not, in its opinion and decision, make any new construction of 'head of a family,' but merely applied the constitutional provision, as construed by previous decisions of this court, to the facts in this case.

The jurisdiction of the supreme court to hear appeals from trial courts is defined in the first sentence of Section 4(2), Article V, which in part reads as follows:

'(2) Jurisdiction. Appeals from trial courts may be taken directly to the supreme court, as a matter of right, * * * from final judgments or decrees directly passing upon the validity of a state statute or a federal statute or treaty, or construing a controlling provision of the Florida or federal constitution, * * *.' (Emphasis added.)

When this last quoted portion of Section 4(2) is read in conjunction with that part of Section 4(2), first above quoted, which deals with the jurisdiction of the supreme court to entertain appeals from the district courts, it becomes apparent that it was intended that the supreme court would have jurisdiction to hear and finally determine appeals from all final judgments, decrees, and decisions of all courts, whether trial or appellate, in those instances in which the order, judgment, or decision appealed from passed upon the validity of a statute or construed a controlling provision of the constitution. The parties to this cause do not contend otherwise.

Further, while the constitutional provisions do not say so in so many words, I think it equally clear that the jurisdiction of the supreme court to entertain appeals from final judgments and decrees determining the validity of statutes and construing provisions of the constitution is exclusive and is not shared either with the district courts of appeal or the circuit courts. The appellate jurisdiction of the circuit courts is defined in Section 6(3), Article V, Florida Constitution.

The use of the word 'may' in the first sentence of Section 4(2) at first glance might seem to indicate that a litigant would have a choice in the court to which he would take his appeals from such judgments and decrees of trial courts. However, when the first sentence of Section 4(2) is read together with the first sentence of Section 5(3), which sentence defines the appellate jurisdiction of the district courts of appeal, it is clear that the word 'may is intended to be permissive only in the sense that a litigant may or may not, at his election, take an appeal. If he does appeal from such a final judgment or decree the word 'may' is mandatory in that it means that the appeal must be taken to the supreme court of this state.

Any construction other than the foregoing would mean that a litigant appealing from such a final judgment or decree of a trial court could elect to take his appeal to a district court, or possibly to a circuit court, rather than to the supreme court. This would defeat the intended plan under which the supreme court was to be the final arbiter of the validity of statutes and constructions placed on provisions of our constitutions, unless a further appeal were allowed to the supreme court. If sanctioned, this would allow two appeals in the same cause on the question of the validity of a statute or construction of a constitutional provision. This was not intended and must not be permitted.

My conclusion then is that the supreme court has exclusive jurisdiction of appeals from trial courts of all final judgments and decrees directly passing upon the validity of statutes or construing controlling provisions of our constitutions. This means that the district courts of appeal and the circuit courts are without jurisdiction to entertain appeals from such judgments or decrees, and if by mistake or error an appeal from such a judgment or decree be filed in a circuit court or district court of appeal, the cause should be transferred to the supreme court.

The foregoing analysis of our jurisdiction of appeals from trial courts is necessary in order to determine the proper construction to be placed upon that provision of Section 4(2) which relates to the jurisdiction of the supreme court in appeals from the district courts of appeal.

I come now to a construction of that part of Section 4(2) fixing the jurisdiction of this court in appeals from the district courts.

As pointed out in my treatment of our jurisdiction of appeals from trial courts, the supreme court has exclusive jurisdiction of appeals from final judgments and decrees of trial courts directly passing upon the validity of statutes or construing controlling provisions of our constitutions.

It follows then that the only occasions in which a district court will have the opportunity to properly determine the validity of a statute or construe a controlling provision of our constitution will be those in which such a question has not been previously decided in the case, and therefore each such decision of the district court on the statutory or constitutional question will always be initial.

At first glance there would seem to be little opportunity for the district courts to determine the validity of statutes or construe the constitution for the first time in a cause, but study of the matter reveals at least three circumstances in which it might be called upon to do so.

The first circumstance is quite obvious. The district courts of appeal are vested with original jurisdiction in habeas corpus, mandamus, prohibition, and quo warranto proceedings. In the exercise of this original jurisdiction a district court may well be called upon the pass upon the validity of a statute or construe a provision of the constitution. And an appeal would properly lie from such decision to this court.

The second circumstance which could occur would be one in which a litigant in the trial court raises the validity of a statute or urges a particular construction of a constitutional provision which controls the decision in the cause, but the trial court does...

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  • Marks v. Delcastillo
    • United States
    • Florida District Court of Appeals
    • August 5, 1980
    ...v. Dupee, 104 So.2d 672 (Fla.2d DCA 1958); Florio v. State ex rel. Epperson, 119 So.2d 305, 309 (Fla.2d DCA 1960); In re: Kionka's Estate, 121 So.2d 644, 647 (Fla.1960); Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970); American Home Assurance Co. v. Keller Industries, 347 So.2d 767, 772 (Fl......
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    • United States
    • Florida District Court of Appeals
    • May 20, 1980
    ...invalid statute would constitute fundamental error. 9 Sanford v. Rubin, 237 So.2d 134 (Fla.1970); In re Kionka's Estate, 121 So.2d 644, 647 (Fla.1960) (O'Connell, J., specially concurring); Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843 (1945); Silver v. State, 174 So.2d 91 (Fl......
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    • United States
    • Florida District Court of Appeals
    • January 21, 1969
    ...156 So. 334; Townsend v. Beck, 140 Fla. 553, 192 So. 390; Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843; In re Kionka's Estate, Fla.1960, 121 So.2d 644; Palm Beach County v. Green, Fla.1965, 179 So.2d 356. The next inquiry is whether or not this provision relating to attorney'......
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    ...Dupee, 104 So.2d 672 (Fla. 2d DCA 1958); Florio v. State ex rel. Epperson, 119 So.2d 305, 309 (Fla. 2d DCA 1960); In re: Kionka's Estate, 121 So.2d 644, 647 (Fla.1960). Moreover, authority is granted to the appellate court to take note of jurisdictional or fundamental error apparent on the ......
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