State, for Use of Groves v. Wilkins-Austin Corp.

• Decision Date: 26 May 1942
• Citation: 150 Fla. 604,8 So.2d 275
• Parties: STATE, for Use of GROVES et al. v. WILKINS-AUSTIN CORPORATION et al.
• Court: Florida Supreme Court

8 So.2d 275

150 Fla. 604

STATE, for Use of GROVES et al. v. WILKINS-AUSTIN CORPORATION et al.

Florida Supreme Court

May 26, 1942

Appeal from Circuit Court, Sumter County; J. C. B. Koonce judge.

S. J Stiggins, of Orlando, for appellant.

T. G Futch and C. Rogers Wells, both of Leesburg, for appellees.

PER CURIAM.

Final decree foreclosing alleged drainage district tax certificate liens upon lands was rendered April 26, 1939 foreclosure sale was confirmed February 23, 1940, the confirmation decree providing that 'this case is retained for further orders.'

The following words and figures are indorsed on the final decree:

'I hereby acknowledge receipt of Master's Deed and credit this Decree for the purchase price as follows:

'For Re-imbursement of Taxed Cost and cost and expense of sale, $105.70; said Certificates of Indebtedness credited $1176.70 and surrendered to the Circuit Clerk for cancellation and by him cancelled, this May 16th, 1940.

'C. H. Groves, by

'S. J. Stiggins, his Attorney.'

On November 26, 1940, this court in another case held in effect that the alleged drainage district tax certificate liens had not been duly authorized by law. State v. Trust Company of Georgia, 145 Fla. 181, 198 So. 844.

On December 21, 1940, defendants below filed a motion in the Circuit Court praying vacation of the final decree of foreclosure and the decree confirming the foreclosure sale setting up the subsequent decision that the drainage district tax certificates were not valid. The motion alleges that the foreclosure deed has not been 'filed or recorded' by the purchaser at the foreclosure sale. This is not denied by the answer to the petition.

The Circuit Judge on March 24, 1941, vacated and set aside the final foreclosure decree of April 26, 1939, and the order confirming a sale of lands under the final decree. This was procedural error. The final decree of April 26, 1939, and the order conforming sale are not void and should not have been vacated and set aside on motion; but the motion filed December 21, 1940, may be presented to the Circuit Judge on an application for leave to file an appropriate bill of review in the premises. See In re Newkirk, 114 Fla. 552, 194 So. 323. The decree of March 24, 1941, here appealed from is reversed pro forma and the case remanded, with leave to make a proper application to the Circuit Judge for an appropriate bill of review.

Under section 4, Declaration of Rights of the Florida constitution, an injured party 'shall have remedy, by due course of law,' that being the means by which 'right and justice shall be administered without sale, denial or delay.'

It is so ordered.

WHITFIELD, TERRELL, CHAPMAN, and ADAMS, JJ., concur.

BROWN, C. J BUFORD, and THOMAS, JJ., dissent.

BROWN, Chief Justice (dissenting).

This case has some features in common with the case of Jackson Grain Company et al. v. Lee, 139 Fla. 93, 190 So. 464, but the situation here involved is different in certain vital respects. This is not an injunction case. Nor is the State or its revenues interested in or affected by the result of this suit. The final decree in this case foreclosing certain alleged drainage district tax certificate liens upon lands was rendered April 26, 1939. The foreclosure sale was confirmed on February 23, 1940. The equities were settled by the final decree of foreclosure, but the decree confirming the sale dealt with certain matters which had transpired pendente lite and ordered the possession of the lands to be delivered to C. H. Groves upon the presentation of the Master's deed. Then this language was used: 'And now this case is retained for further orders'. We hardly think that it was the intention of the Circuit Court, by this language, to hold the case open for any further attack upon the validity or force and effect of the final decree and the sale had thereunder, which the court had confirmed.

Some months later, on December 21, 1940, the defendants, appellees here, filed a motion in the Circuit Court praying a vacation of the final decree of foreclosure and the decree confirming the foreclosure sale upon the ground that in the meantime, this Supreme Court, by an opinion filed November 26, 1941, in another case (State for Use of Groves v. Trust Co. of Georgia, 145 Fla. 181, 198 So. 844) had held in effect that the alleged drainage tax certificate liens involved in that case had not been duly authorized, as the record did not show any assessment made by the committee named by the legislative act, and hence the certificates did not constitute a lien on the lands involved in that suit, which was in the same drainage district and involved the same class of drainage tax certificates. No appeal was taken from the final decree of foreclosure in the case at bar, and no bill of review was filed, within the six months' period, nor was a bill in the nature of a bill of review filed after the six months' period. But counsel for the appellant here makes no point on the method of attack by motion, having filed in the court below an answer to the motion, without objection to the form of attack. So we may treat this motion above referred to as an application for leave to file a bill in the nature of a bill of review seeking the vacation of said foreclosure decree on account of the decision of this court on November 26, 1941, rendered in another case. The appellant here filed, as above stated, an answer to the motion to vacate the final decree of foreclosure, in which the appellant denied that the pleadings and evidence were substantially the same here as in the former case above cited, but when the matter came on to be heard the learned Circuit Judge granted the motion and set aside the final decree of foreclosure theretofore rendered in this case in April, 1939, and the decree of February 23, 1940, confirming the sale, and it is from that order that this appeal is taken. The appellant here is the purchaser at the foreclosure sale.

We do not think that the cases of Jackson Grain Co. v. Lee, 139 Fla. 93, 190 So. 464, and the same case on a second appeal considered and decided at this term, are necessarily controlling here. That was a case involving an injunction against the Comptroller, a State officer, who was represented in the case by the Attorney General, the purpose of which was to enjoin the collection of certain excise taxes. It was not a suit between private parties, as here. And it was held in effect in that case that laches on the part of the State's officer in not taking an appeal from the decree of injunction against the Comptroller, enjoining him from collecting certain excise taxes, did not operate to estop the Comptroller, after time for appeal had expired, from filing a bill in the nature of a bill of review, after this Court, in the meantime and in another case, had construed the statute to mean that said taxes were imposed by the statute and were legal and collectable. While the State was not a formal party to that suit the State's revenues were at stake and the State was in a practical sense the real party in interest.

But in this case we have a suit between private parties in which a decree foreclosing certain drainage tax certificates and confirming the sale under said decree had both become final; the time for taking an appeal had elapsed, and likewise the time when a strict bill of review could have been filed. But the motion to set aside said decree was made within a month after this court had in another case held that similar drainage tax certificates, based upon assessments alleged to have made by the same drainage district, were not authorized as required by the special act, and that therefore the trial court was correct in refusing to foreclose the supposed liens. The answer of the appellants, as made in the court below, was mainly to the effect that the said final decree of foreclosure and the decree confirming the sale in this case had become final and that the doctrine of res judicata applied and that therefore the court below should have denied the said motion to set aside said decree.

Appellant contends that a subsequent decision in another case is not such new matter as would constitute a ground for bill of review, citing various authorities, including 21 C.J. 760. (See, also, 30 C.J.S., Equity, § 646; 19 Am.Juris. 298, 306.) Also that the only questions open for examination on a bill of review are such questions of law as arise on the pleadings, proceedings of record and decree, exclusive of the evidence. That in this case appellants show only a finding of the Supreme Court in a later case that the evidence in that particular case failed to show that the committee named in the act had made a valid assessment before passage of the act, and that therefore the decision was based on the evidence, or the lack of it, in that case.

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