State ex rel. Hill v. Hearn

• Decision Date: 20 December 1957
• Citation: 99 So.2d 231
• Parties: STATE of Florida ex rel. Horace E. HILL, Relator, v. J. M. HEARN, as County Judge in and for Suwannee County, State of Florida, Respondent.
• Court: Florida Supreme Court

Page 231

99 So.2d 231

STATE of Florida ex rel. Horace E. HILL, Relator, v. J. M. HEARN, as County Judge in and for Suwannee County, State of Florida, Respondent.

Supreme Court of Florida.

Dec. 20, 1957.

Adams & Judge, Daytona Beach, for relator.

Frank T. Cannon and Charles A. Powers, Jr., Jacksonville, for respondent.

THORNAL, Justice.

In an original proceeding here relator Hill seeks a rule absolute in prohibition against the respondent Hearn, as, County Judge.

The point involved is whether prohibition will lie to prevent a court of competent jurisdiction from enforcing by way of contempt proceedings an outstanding and unrevoked order of the court involved.

One aspect of this matter was previously before this court. See In re McCollum's Estate, Fla.1956, 88 So.2d 537.

It appears from the record now here that on December 18, 1953, the respondent Hearn, as County Judge, entered an order by which the decided that one Kenneth McCollum was the illegitimate son of Samuel McCollum, deceased. This order concluded that the deceased had recognized Kenneth in writing as his son. On the basis of this finding, Kenneth was declared to be a legal heir of Samuel. On December 30, 1953, the respondent County Judge entered an order allowing to the relator Hill a fee of $1,950 to be paid by the administrators of the estate of Samuel McCollum for services rendered by Hill, as attorney for Kenneth McCollum. The administrators paid the fee to Hill. Both of the above described orders were reversed on appeal by the Circuit Court of Suwannee County under date of February 19, 1954.

Thereafter the administrators of the Samuel McCollum estate as well as his heirs at law petitioned the County Judge to direct restitution by Hill of the fee paid under the order of December 30, 1953. Hill answered the petition for restitution and at that point the respondent County Judge held the matter under advisement. So far as this record reveals no further order was entered allowing Hill a fee. The County Judge did, however, enter a subsequent order by which he again determined that Kenneth McCollum was the legal heir of the late Samuel McCollum. This order was affirmed by the Circuit Judge but on appeal was reversed by this court in the matter of In re McCollum's Estate, supra.

Upon the filing of our mandate reversing the last order of the County Judge, the latter after a full hearing entered an order on July 17, 1957 directing the relator Hill to make restitution of the $1,950 fee paid to him under the original order which had been reversed. The substance of the restitution order was that Hill restore the amount involved to the administrators of the McCollum estate within forty days. The theory upon which the order was entered was that the money was in custodia legis and that relator Hill, as attorney, had been unduly enriched by an erroneously entered order which had been reversed by this court.

Relator Hill refused to make restitution. Such refusal then culminated in an order entered September 13, 1957 whereby respondent Hearn, as County Judge, directed relator Hill to show cause on a day certain why he should not be adjudged guilty of contempt of court for failure to comply with the order of restitution entered July 17, 1957.

Before the hearing on the rule to show cause, Hill petitioned this court for a writ of prohibition to prohibit the respondent County Judge from holding the hearing on the contempt citation. A Rule nisi issued and the matter now comes before us on application for a rule absolute.

The relator here contends that he received the money in good faith pursuant to an order of a court of competent jurisdiction and that he should, therefore, not be required to repay it.

The respondent contends that he properly entered the order of restitution and that prohibition will not lie to prevent him from exercising his power to punish for contempt in the premises.

We do not lose sight of the rule that the power to punish for contempt should be sparingly exercised. However, we have recognized consistently that a court of competent jurisdiction necessarily is endowed with this power in order to enforce its judgments and decrees. South Dade Farms, Inc., v. Peters, Fla.1956, 88 So.2d 891; Demetree v. State ex rel. Marsh, Fla.1956, 89 So.2d 498.

We must bear in mind that we are not being asked to review on appeal any order of the respondent judge entered in a contempt proceeding. We are here confronted with the request that we prohibit the respondent from exercising a power which we ourselves have heretofore held inheres in a court of competent jurisdiction. Historically the writ of prohibition is a process by which a superior court prevents an inferior court from exercising jurisdiction which it does not have or from exceeding its admitted jurisdiction. Ex parte, Peaden, 88 Fla. 273, 102 So. 160. In State ex rel. McGregor v. Peacock, 113 Fla. 816, 152 So. 616, we declined to prohibit a trial judge from proceeding to hear and determine a contempt matter on the ground that it was within his jurisdiction to determine in the first instance whether the facts constituted contempt.

If the lower court has the jurisdiction, that is, the power to act, prohibition will not...