In Re Newkirk, in Re

• Decision Date: 16 April 1934
• Citation: 114 Fla. 552,154 So. 323
• Parties: In re NEWKIRK et al.
• Court: Florida Supreme Court

154 So. 323

114 Fla. 552

In re NEWKIRK et al.

Florida Supreme Court

April 16, 1934

En Banc.

Original application by Ada Newkirk, joined by her husband, T. R Newkirk, for a writ of prohibition to the circuit court of Hillsborough county.

Rule nisi denied.

COUNSEL S. S. Sandford, of Tampa, for petitioners.

OPINION

DAVIS Chief Justice.

Prior to the rendition of the opinion of this court in Hillsborough County v. Temple Terrace Assets Co., 149 So. 473, the circuit court of Hillsborough county had rendered a final decree in equity against the petitioners Ada Newkirk and T. R. Newkirk, in favor of Highway Engineering & Construction Company, based upon chapter 9316 Acts of 1923, and chapter 10139, Acts of 1925. The relief granted in that case was the foreclosure of certain liens predicated upon the constitutional validity of said acts of the Legislature just referred to. But in Hillsborough County v. Temple Terrace Assets Co., supra, this court held that chapter 9316, Acts of 1923, never constitutionally passed the Legislature and therefore never became a valid statute of this state. So the relief now attempted to be obtained by this application for writ of prohibition is relief against further proceedings in the circuit court of Hillsborough county wherein it appears that the circuit court is about to issue and have executed its writ of assistance in aid of the enforcement of a final decree of foreclosure based upon chapter 9316, Acts of 1923, which has been declared unconstitutional by this court subsequent to the final decree upon which the writ of assistance is about to be ordered.

Assuming that the facts alleged in the petition entitle the petitioners to be relieved of compliance with a final decree of the circuit court not directly attacked by appeal during the time allowed for appeal, the remedy is not prohibition. So long as the final decree of a court of chancery stands unvacated, unreversed, and unmodified, the circuit court has power to enforce it by appropriate processes available for that purpose. A decree based upon an unconstitutional statute is not essentially void nor open to collateral attack, since the power of a court of chancery to decide a case otherwise properly brought before it includes the judicial power to decide that a statute involved in the proceeding is a valid statute, even though its decision on the constitutional point be erroneous and the resultant decree be one that would not have been rendered had the court correctly decided the constitutional point.

Complainants' remedy is by petition in the nature of an original bill in the nature of a bill of review, by which...