Fort v. Fort, A-302
| Decision Date | 17 June 1958 |
| Docket Number | No. A-302,A-302 |
| Citation | 104 So.2d 69 |
| Court | Florida District Court of Appeals |
| Parties | Chester A. FORT, Jr., Petitioner, v. Anne Burton FORT, Respondent. |
Smith & Axtell, Jacksonville, for petitioner.
Greene, Ayres & Greene, Ocala, for respondent.
This cause comes before us on petition for writ of certiorari to review an order entered after final decree in a divorce proceeding and pursuant to a motion by defendant-petitioner seeking reduction of alimony. Petitioner here contends error in that the testimony and evidence adduced clearly demonstrate that plaintiff-respondent has no further need for alimony, and that his physical condition and earning capacity are shown to be such that he is unable to make alimony payments in the amount required by the court's decree as subsequently modified.
We are immediately faced with a question as to the propriety of petitioner's use of certiorari to obtain review of a Chancellor's post final decree order. It is contended that this right exists by virtue of F.S. § 59.02(3), F.S.A., which provides for review of interlocutory orders and decrees in equity by proceedings in the nature of certiorari.
Section 3 of Article V of the Florida Constitution, as amended in 1956, F.S.A., provides that the practice and procedure in all the courts of this State shall be governed by rules adopted by the Supreme Court. Pursuant to this authority our Supreme Court, by order entered June 18, 1957, adopted rules governing appellate review of orders, judgments and decrees entered by trial courts, and administrative boards and agencies, effective July 1, 1957.31 F.S.A. Rule 1.4, F.A.R., provides that all statutes not superseded thereby or in conflict therewith shall remain in effect as rules promulgated by the Court. Rule 4.2, subd. a, F.A.R., provides for: 'Appeals from interlocutory orders or decrees in equity orders or decrees entered after final decree, and orders at common law relating to venue or jurisdiction over the person * * *' The remaining provisions of Rule 4.2, F.A.R., set forth the mechanics by which review of such orders may be obtained. Giving force and effect to the constitutional mandate hereinabove set forth and the rules promulgated thereunder it becomes clear that orders of the type now under consideration can no longer be reviewed by certiorari under § 59.03(3), F.S. The statute, being in conflict with the rules, must be considered superseded. Furthermore, there being an adequate remedy by appeal...
To continue reading
Request your trial
-
Ramagli Realty Co. v. Craver
...does not conform to the essential requirements of law. United Life Insurance Company v. Jowers, Fla.App.1960, 118 So.2d 85. Fort v. Fort, Fla.1958, 104 So.2d 69; Kroier v. Kroier, 95 Fla. 865, 116 So. 753; See a discussion of this matter in 3 Florida Law and Practice, Certiorari, Sect. 35 (......
-
Pavey v. Pavey, 59-137
...by interlocutory appeal under rule 4.2, Fla.App.Rules, 31 F.S.A. 1 Jones v. Johnson, Fla.App.1957, 98 So.2d 506; Fort v. Fort, Fla.App.2d 1958, 104 So.2d 69. Provision for review of such interlocutory orders has been subject to change in recent years. Such orders formerly were reviewable by......
-
Engel v. City of North Miami
...a petition for certiorari cannot and will not be considered as a notice of appeal in order to accomplish appellate review. Fort v. Fort, Fla.App.1958, 104 So.2d 69; Jones v. Johnson, Fla.App.1957, 98 So.2d 506; Bartow Growers Processing Corp. v. Florida Growers Processing Cooperative, Fla.1......
-
Clement v. Aztec Sales, Inc.
...not superseded hereby or in conflict herewith shall remain in effect as rules promulgated by the Supreme Court.' See also Fort v. Fort, Fla.App.1958, 104 So.2d 69 and Farrell v. Bendix Corp., Fla.App.1970, 232 So.2d From the foregoing it is our view that the statute is basically an appellat......