State v. Wright

• Decision Date: 07 November 1932
• Citation: 145 So. 598,107 Fla. 178
• Court: Florida Supreme Court
• Parties: STATE ex rel. MELBOURNE STATE BANK v. WRIGHT, Circuit Judge.

145 So. 598

107 Fla. 178

STATE ex rel. MELBOURNE STATE BANK v. WRIGHT, Circuit Judge.

Florida Supreme Court

November 7, 1932

Rehearing Denied Dec. 5, 1932.

Commissioners' Decision.

Original petition by the State, on the relation of the Melbourne State Bank, for mandamus to the Horable W. W. Wright as Judge of the Circuit Court of the Twenty-Third Judicial Circuit. Respondent having died, the cause was revived against his successor, the Honorable M. B. Smith, as Judge.

Mandamus awarded.

See also, Melbourne State Bank v. Gillette, 101 Fla 235, 134 So. 46.

COUNSEL

F. W. Butler, of Melbourne, for relator.

Maguire & Voorhis, of Orlando, for respondent.

OPINION

MATHEWS C.

This is a case of original jurisdiction in mandamus. Alternative writ of mandamus was issued herein on October 23, 1931, directed to W. W. Wright as judge of the circuit court of the Twenty-Third judicial circuit of the state of Florida, to require the said circuit judge to forthwith make and enter an order (1) vacating an order made August 22, 1928, vacating and setting aside a judgment dated March 29, 1928, in favor of Melbourne State Bank against Elsie F. Gillette, claimant and Clyde H. Flewelling and H. B. Flewelling and Sam R. Scott--erroneously named therein Sarah R. Scott--and (2) reinstating said judgment, and (3) amending and correcting said judgment by striking the name of Sarah R. Scott therefrom and inserting in lieu thereof the name Sam R. Scott.

The alternative writ was returnable on November 17, 1931. On the return day, the respondent filed demurrer and motion to quash.

It appears from the alternative writ that on January 18, 1927, Melbourne State Bank recovered a judgment against S. J. Gillette in Brevard county circuit court for $1,421.75. Execution issued January 20, 1927, and was delivered to the sheriff of Orange county, Fla., on August 6, 1927. On the same day, the sheriff levied the execution on certain property, and on August 8, 1927, Elsie F. Gillette filed her claim affidavit and bond with Clyde H. Flewelling and H. B. Flewelling and Sam R. Scott as sureties, and the sheriff surrendered the property to her. The Orange county sheriff returned the execution, claim affidavit, and bond to Brevard county circuit court on October 7, 1927. The next term of court convened on October 11, 1927, but the cause was not tried at that term. At the spring term, 1928, the cause came on for trial, without notice to the claimant or sureties other than that the case appears to have been regularly docketed. On March 29, 1928, a verdict was rendered for the plaintiff which found the right of property in S. J. Gillette, the defendant in execution; that the claim was interposed for delay, and awarded the plaintiff damages, with interest.

On the same day, March 29, 1928, judgment was entered 'that the right of property * * * levied on by the Sheriff herein, is in the defendant, S. J. Gillette, and the same was and is subject to said levy under the writ of execution * * * that the plaintiff * * * recover of the claimant, Elsie F. Gillette, and against her sureties, Clyde H. Flewelling, H. B. Flewelling and Sarah R. Scott, the principal sum of $1,421.75, together with all interest thereon from the date of levy, to wit, August 8th, 1927 * * *, and the further sum of $150.00 as damages, * * * and costs * * * taxed at $15.25.'

The spring term of Brevard county circuit court was adjourned sine die on May 11, 1928.

On August 11, 1928, Clyde H. Flewelling and H. B. Flewelling filed and presented to the circuit judge, pursuant to notice given, a motion to vacate and set aside the judgment of March 29, 1928. The motion was argued, affidavits submitted, and briefs filed, and the respondent W. W. Wright as circuit judge found 'that said judgment ought to be vacated and set aside' and entered an order vacating the judgment, and ordered that the said cause be submitted to a jury during the next term of court.

On October 13, 1931, Melbourne State Bank filed petition before respondent, W. W. Wright, as circuit judge, praying that respondent 'vacate and set aside the order' vacating the judgment and 'that said judgment be reinstated and thereupon corrected * * * by amending the name of the judgment defendant from that of Sarah R. Scott to Sam R. Scott.' The petition was denied.

Respondent, W. W. Wright, having died, an order has been made herein reviving the cause against his successor, the Honorable M. B. Smith, as judge.

It is the contention of the relator that the trial court had jurisdiction in the claim proceeding and was without jurisdiction during vacation to set aside the judgment rendered during term, and that mandamus is the proper remedy where a court has exceeded its power in vacating a judgment after the term.

Section 4517(2830), Compiled General Laws of Florida 1927, provides that 'if any person other than the defendant in execution shall claim any property levied upon, he may obtain possession of such property by filing with the officer having such execution an affidavit made by himself * * * that the property claimed by him belongs to him, and a bond payable to the plaintiff.'

Section 4518(2831), Compiled General Laws of 1927, requires the sheriff, upon affidavit and bond being filed, to deliver the property levied upon under the execution to the claimant and return the bond and affidavit to the court issuing the execution.

Section 4519(2832), Compiled General Laws of 1927, provides for trial of the right of property before a jury.

The proceedings taken under the above sections show the court below had jurisdiction in the claim proceedings of the parties and of the subject-matter.

It is a general rule of law that all the judgments, decrees, or other orders of the court, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may be then set aside, vacated, modified, or annulled by that court. But it is a rule equally well established that after the term has ended, all final judgments and decrees of the court pass beyond its control unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them, and if errors exist, they may be corrected by such proceeding by a writ of error or appeal, as may be allowed in a court which by law can review the decision. Alabama Hotel Co. v. Mott Iron Works, 86 Fla. 608, 98 So. 825, 826; Malone v. Meres, 91 Fla. 709, 109 So. 677.

This court has recognized exceptions to the general rule in that 'orders, decrees, or judgments, made through fraud, collusion, deceit, or mistake, may be opened, vacated, or modified at any time, on the proper showing made by the parties injured.' Alabama Hotel Co. v. Mott Iron Works, supra.

In the case last cited, the trial court was held to have properly made an order in vacation vacating an order dissolving a garnishment, where it appeared that the court did not fully understand the agreement of the parties which formed the basis for the order of dissolution.

The demurrants seek to come within the recognized exceptions. Thus the motion to vacate the judgment against the claimant and her sureties sets out, in substance: That the claim proceeding was not tried at the first term of court convening after the claim affidavit and bond was filed in the clerk's office, that the trial was had at the spring, 1928, term without notice to claimant and her sureties; and that they were misled by virtue of advice to claimant's attorneys on October 12, 1927, that the case was not docketed for trial.

It is not every mistake which will afford relief such as was granted to the movants by the court below. The mistake which will be taken cognizance of by the courts finds its parallel in the instance of a clerk entering a judgment on default because of misapprehension as to the allegations of the pleadings.

In Cooper v. Rhea, 82 Kan. 109, 107 P. 799, 29 L. R. A. (N. S.) 930, 136 Am. St. Rep. 100, 20 Ann. Cas. 42, the plaintiff made affidavit that at the time the judgment was rendered he understood that the parties and the court had agreed that the answer was to be amended so as to set out the tax deed, and that it was treated at the hearing on demurrer as though such amendment had already been made. He also introduced an affidavit of the former judge of the court who presided when the judgment was rendered stating that he had understood that to be the situation and had acted upon the understanding. It therefore was shown that the judgment was rendered on the pleadings, while the court and the losing party were under the mistaken impression as to what issues were presented. Accordingly, the case was reversed and remanded for further proceedings in accordance with the opinion.

In the motion to vacate the judgment against claimant, it is urged that claimant and her sureties had no notice or knowledge of the trial. The claimant and her sureties submitted themselves to the jurisdiction of the court by filing claim affidavit and bond with the sheriff of Orange county, which was approved by the sheriff and filed in the Brevard county clerk's office. This brought home to them knowledge of the pendency of the claim proceedings. Circuit Court Rule 41; section 4519(2832), Compiled General Laws of 1927; Fariss v. Holly, 95 Fla. 360, 116 So. 763.

It appears that everything with reason was done by the attorneys for plaintiff in execution to put claimant and her sureties on notice of the docketing of the claim proceedings for trial at the spring term of 1928, and there was no legal duty or obligation on the plaintiff in execution to give...