Williams v. Yelvington

• Decision Date: 16 October 1931
• Citation: 137 So. 156,103 Fla. 145
• Parties: WILLIAMS et al. v. YELVINGTON et al.
• Court: Florida Supreme Court

137 So. 156

103 Fla. 145

WILLIAMS et al. v. YELVINGTON et al.

Florida Supreme Court

October 16, 1931

Commissioners' Decision.

Error to Circuit Court, Dade County; A. V. Long, Judge.

Action by Margaret Williams, joined by her husband and next friend George C. Williams, against Josephine C. Yelvington, a free dealer, and husband. A verdict was directed in favor of the defendant named, and plaintiffs filed a petition for a writ of error coram nobis. To review a judgment denying the writ plaintiffs bring error.

Affirmed.

Syllabus by the Court.

SYLLABUS

The function of a writ of error coram nobis is to bring the attention of the court to a specific fact or facts then existing but not shown by the record and not known by the court or by the party or counsel at the trial, and being of such a vital nature that if known to the court in time would have prevented the rendition and entry of the judgment assailed.

The writ of error coram nobis is not a writ of right, but may be granted in the exercise of sound judicial discretion.

The presumption is in favor of the proper exercise of the discretionary power of a court.

COUNSEL

Burdine, Terry & Fleming, of Miami, for plaintiffs in error.

Paul C Taylor, of Miami, for defendants in error.

OPINION

DAVIS C.

The defendant in error, Josephine C. Yelvington, with her husband, was sued at law as free dealer. The cause came on for trial before a jury on January 14, 1931. The plaintiffs plaintiffs in error here, produced and offered in evidence the files in a chancery proceeding entitled, 'In re Application of Josephine C. Yelvington to become a free dealer,' and it appeared therefrom that on January 25, 1921, a final decree was granted by the circuit judge authorizing the said Josephine C. Yelvington to become a free dealer and granting to her a free dealer's license. The affidavit of publication on file in said cause, made by the auditor of the newspaper in which the decree was published, showed that the decree was published five consecutive weeks beginning on January 2, 1921, and ending on February 2, 1921. The defendants moved the court to instruct the jury to return a verdict in their favor on the ground that the defendant Josephine C. Yelvington was not shown to have become a free dealer prior to the institution of the action and was not a free dealer at the time of the trial, and that, being a married woman, she was not legally liable upon the promissory note in suit and that a valid judgment could not be entered against her. Whereupon, the plaintiffs moved the court for a nonsuit. The court directed a verdict in favor of the defendant Josephine C. Yelvington. On January 26, 1931, the plaintiff filed a petition for writ of error coram nobis which set up substantially the above facts and the further facts that the affidavit of publication was erroneous; that it should have shown that the decree was published for five consecutive insertions, beginning with February 2, 1921, and ending March 2, 1921; that in truth and in fact it was published for the period of time and on the dates last mentioned and that the said Josephine C. Yelvington was a free dealer 'from thence hitherto.' The petition was supported by affidavits which were made a part thereof. In an affidavit made by one of the attorneys for the plaintiff in error, it was averred that 'the said file had been examined and affiant had not noticed the final decree was shown to have been improperly published'; that on January 21, 1931, affiant ascertained for the first time that the said final decree was published properly and in accordance...