Mayflower Inv. Co. v. Brill

• Decision Date: 18 April 1939
• Citation: 188 So. 205,137 Fla. 287
• Parties: MAYFLOWER INV. CO. v. BRILL et al.
• Court: Florida Supreme Court

188 So. 205

137 Fla. 287

MAYFLOWER INV. CO. v. BRILL et al.

Florida Supreme Court, Division B.

April 18, 1939

On rehearing.

Former judgment of affirmance set aside and judgment of reversal entered, and cause remanded with directions.

For original opinion, see131 Fla. 70, 178 So. 827, and for order granting rehearing, see132 Fla. 530, 180 So. 754.Appeal from Circuit Court, Dade County; Paul D. Barns Judge.

COUNSEL

A. M Reder and Thomas H. Anderson, both of Miami, for appellant.

No appearance for appellees.

OPINION

PER CURIAM.

In an opinion rendered by this Court on January 14, 1939, 131 Fla 70, 178 So. 827, the order of the lower court denying the motion of the appellant to vacate the final order dismissing the cause and to reinstate the cause was affirmed.Subsequently a petition for rehearing was denied, but the Court upon reconsideration of said petition, granted the rehearing by an order made April 28, 1938, 132 Fla. 530, 180 So. 754.

In this case an order dismissing the cause was entered by the lower court on September 5, 1935.

On March 27, 1936, the appellant, Mayflower Investment Company filed its petition praying Court to vacate its final order of September 5, 1935, dismissing the cause and to reinstate the cause.It was alleged in said petition that the petitionerappellant here, had been allowed to intervene in the cause, and had filed its bill of intervention therein, showing that said intervenor had a vital interest in the cause and that said order of dismissal had been entered on motion of the complainant without any notice whatever to said intervenor, who was clearly entitled to such notice.It was also alleged in said petition that by said motion to dismiss a fraud had been practiced upon the court and upon the petitioner.

It is true that section 70 of the 1931 Chancery Act(chapter 14658) provides that petitions for rehearing shall be filed within 20 days, whereas this petition to vacate the order dismissing the cause was not filed until several months elapsed.However, the petition to vacate alleged that the defendant had had no notice and was without knowledge of the decree of dismissal until shortly before the petition to vacate the same was filed.

It is contended by the appellant that inasmuch as it had been allowed to intervene in the cause below, after due notice to all parties, and had been alowed to file its bill of intervention, setting up its interest in the subject matter of the suit, that it had thereby acquired a vested interest in such subject matter and in said cause, of which it could not be deprived, by an order of dismissal, granted on complainant's motion, without notice to or knowledge of the intervenorappellant, and without any opportunity to be heard thereon; that therefore the said order of the court dismissing the cause was void, as to this appellant.

It is fundamental that due process guarantees to a party notice and an opportunity to be heard before his rights are taken away from him by order, decree or judgment of any court.SeeWindsor v. McVeigh,93 U.S. 274, 23 L.Ed 914;Hovey v. Elliott,167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215;Glazer v. Rosoff,120 Conn. 120, 179 A. 407;Hunter v. May,161 Tenn. 155, 25 S.W.2d 580.

We are here dealing with a direct, and not a collateral attack.

Our conclusion is that the court below erred in denying the petition to vacate...