State Ex Rel. Everette v. Petteway

• Decision Date: 22 February 1938
• Citation: 179 So. 666,131 Fla. 516
• Parties: STATE ex rel. EVERETTE et al. v. PETTEWAY, Judge, et al.
• Court: Florida Supreme Court

179 So. 666

131 Fla. 516

STATE ex rel. EVERETTE et al. v. PETTEWAY, Judge, et al.

Florida Supreme Court

February 22, 1938

En Banc.

Original proceeding by the State of Florida, on the relation of Bessie Smith Everette, joined by her husband, S. H. Everette, for a writ of prohibition to prevent the circuit court and H. C Petteway, Judge of the Tenth Judicial Circuit, in and for Polk County, from entering an order or judgment holding petitioners in contempt after hearing on a petition by Mae S Houlihan, administratrix of the estate of Pallie S. Smith deceased, for a rule nisi requiring relators to show cause for noncompliance with a decree of such court. On demurrers to the petition for the writ.

Demurrers overruled, and writ granted, unless respondents file answer within ten days.

COUNSEL Eldridge Cutts, of Lakeland, for petitioners.

H. S. Glazier, of Tampa, for respondents.

OPINION

BUFORD Justice.

This is original prohibition under article 5, section 5, of the Constitution of 1885. The petition seeks a writ of prohibition to prevent the circuit court and the Hon. H. C. Petteway, Judge of the circuit court of Polk county, from entering an order or judgment announced by him to be entered but not yet entered, holding petitioners in contempt of court.

The facts of the case, as gathered from the petition, the record, and other matters contained in the transcript, are in substance as follows:

F. M. Houlihan, the son-in-law and legal guardian of Pallie S. Smith, his mother-in-law, an insane person and a widow, did on March 30, 1934, file his bill of complaint against Bessie Smith Everette, a daughter of Pallie S. Smith, and S. H. Everette, her husband, in which it was alleged that the defendant, Bessie Smith Everette did, on December 12, 1933, coerce, persuade, and procure by deceit and fraud, from Pallie S. Smith, a deed conveying to said Bessie Smith Everette the home of said Pallie S. Smith, located in Thomasville, Ga. It appears that Pallie S. Smith, at the time of her death, left three daughters and three grandchildren, the latter presumably the children of a deceased son, who were her heirs. The bill prayed that the defendants be required to reconvey said property to Pallie S. Smith. The answer to the bill admitted the execution of the deed of said property to Bessie Smith Everette, but denied that Pallie S. Smith was or ever had been insane or of unsound mind, and denied that said deed was obtained by persuasion, coercion or fraud.

On June 7, 1935, Judge Petteway entered what purported to be a final decree in the case, finding that at the time the deed was executed, Pallie S. Smith did not have sufficient mentality to know and understand the nature and extent of her act; and the deed was held void and the property ordered reconveyed. The court decided also that fraud and undue influence were not involved in the determination, as lack of mental capacity was the only question involved. The decree also recited that during the pendency of the suit, Pallie S. Smith died, that a suggestion of her death was filed and a suggestion that F. M. Houlihan had been appointed administrator of the estate of Pallie S. Smith and entitled to carry this suit to conclusion, was filed; and the court, over the objection of defendants, permitted this substitution of plaintiffs, without deciding whether F. M. Houlihan had been validly appointed administrator, or whether the county judge's court of Hillsborough county had jurisdiction to appoint an administrator of the estate of Pallie S. Smith. The decree recited that there was much evidence tending to show that Pallie S. Smith was a resident of the state of Georgia at the time of her death, and that the decree is entered without prejudice as to the question of the propriety of the appointment of such administrator, in the event such question is hereafter raised in a proper manner in any court or cause. An appeal was taken from the final decree, but it was afterwards dismissed.

On July 8, 1936, Mae S. Houlihan, as the new and substituted administratrix of the estate of Pallie S. Smith filed a petition in the cause asking that the court issue a rule nisi requiring the defendants to show cause why they have not complied with the decree of the court. The rule issued on the same date.

On the date named in the rule, the defendants appeared and filed their answer, which was sworn to, together with their motion to set aside and vacate the decree of June 7, 1935, and at that time asked the court to stay further proceedings as to the contempt rule, until the motion to vacate and set aside the final decree should be concluded.

Judge Petteway has not yet rendered a decision, but having reached a conclusion unfavorable to petitioners, and being willing that they should have the opportunity of testing the validity thereof, if possible, before entering the order, he sent, attached to a letter dated August 21, 1936, a copy of an order or judgment he expects to sign. From the letter it will be seen that he will hold the defendants in contempt of court, based upon said proceedings, and will not recognize the motion to vacate the final decree.

On October 8, 1936, the defendants filed their petition in this court, praying that a writ of prohibition be issued 'prohibiting the said Circuit Court and the said Judge thereof, from granting, signing or entering the said order or judgment in the form as announced by said Judge to be entered, or any other form substantially as indicated by him'; and that this court may make such other orders as may be proper and in accordance with the practice of this court.

This court, on October 14, 1936, issued its rule nisi to respondents to show cause why a writ of prohibition should not be issued as prayed.

Mae S. Houlihan, as administratrix of the estate of Pallie S. Smith, and the Hon. H. C. Petteway, each filed separate demurrer to the petition. The substance of the grounds of the demurrers matterial to disposition of this case is whether the circuit court of Polk county had jurisdiction of the cause, of the defendants, and of this class of cases, and if such was shown by the petition; whether the court below was exceeding its jurisdiction; whether the petition is legally sufficient; and whether the transcript is complete and properly authenticated as required.

It is contended that in a proceeding to prevent a circuit judge from adjudging defendants to be in contempt of court for their failure to obey a purported final decree, all of the proceedings leading up to that final decree should accompany the petition seeking the writ of prohibition.

Our statute, section 5450, C. G. L., relating to the petition for a writ of prohibition, contains the following provision:

'When the matters suggested appear upon the face of the proceedings in the inferior court, then the transcript of the record of all the proceedings in the case, duly certified, shall accompany the suggestion, and where the matters suggested are not matters of record, then the truth thereof shall be verified by affidavit of the party instituting the proceedings or of his agent, or attorney-at-law, or in fact.'

This statute requires that when matters relied upon as a basis for seeking the issuance of a writ of prohibition appear upon the face of the proceedings below, the transcript of all the peoceedings in the case, duly certified, shall accompany the petition; and the truth of matters not of record, relied upon for obtaining issuance of the writ, shall be verified by affidavit of the petitioner, his agent, attorney-at-law, or attorney-in-fact. The proceeding involved here is a contempt proceeding brought upon the purported final decree of June 7, 1935. Nothing back of that decree is material to this proceeding. If either that decree or the order substituting F. M. Houlihan, as administrator of the estate of Pallie S. Smith, as plaintiff, were erroneous, the defendants had an opportunity to remedy such error by appeal. A presumption lies in favor of the regularity of proceedings of a court of general jurisdiction. Where the decree is one the court had jurisdiction to render, the presumptions are all in favor of its regularity and validity until vacated by a proper proceeding instituted directly for the purpose of correcting errors therein. 15 R. C. L. 875, § 353. Therefore, it was not necessary to attach to the petition any of the record of the proceedings below prior to the rendition of the final decree. It is not contended that any of the proceedings below after the entry of the final decree are not brought here in the transcript.

It is contended that the certificate of the clerk is insufficient in form. That certificate is:

'I, J. D. Raulerson, Clerk of the Circuit Court of Polk County, Florida, do hereby certify that the above and foregoing from 1 to 50 pages constitute true and correct copies of the following described portions of the record in this office in the above stated Chancery Cause No. 16700, to-wit: * * * (enumerating the portions of the record copies) * * *

'Witness my official signature as Clerk of the said Circuit Court and the Seal of the said Court, at Bartow, Florida, this the 23rd day of September, 1936.'

The certificate is signed by J. D. Raulerson, as clerk of the circuit court of Polk county, Fla., and the seal of the circuit court of Polk county, Fla., is attached. It appears that this certificate is sufficient to satisfy the requirements of the statute, Section 5450, C. G. L., the section applicable thereto.

The final decree of June 7, 1935, contains the following paragraphs in regard to the jurisdiction of the county judge of Hillsborough county over the estate of Pallie S. Smith and over the administrator thereof:

'It appears that the...