Zewadski v. Barksdale

• Decision Date: 17 December 1923
• Citation: 98 So. 590,86 Fla. 552
• Parties: ZEWADSKI v. BARKSDALE et al.
• Court: Florida Supreme Court

98 So. 590

86 Fla. 552

ZEWADSKI v. BARKSDALE et al.

Florida Supreme Court

December 17, 1923

Suit by W. K. Zewadski against J. M. Barksdale, as trustee for Clyde Watkins and others. From an order sustaining a demurrer to the bill of review, complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Bill of review based on errors apparent in record must ordinarily be brought within time limited for appeal. A bill of review based upon errors apparent in the record must ordinarily be brought within the time limited by statute for taking an appeal from the decree sought to be reviewed. Trust Co v. Grant Locomotive Works, 135 U.S. 207, 10 S.Ct. 736 34 L.Ed. 97.

Bill of review based on errors apparent on record must be brought within six months after entry of decree. A bill of review was filed November 3, 1921. The decree sought to be reviewed was entered September 17, 1920, and enrolled, according to the allegations of the bill, on or about the 16th day of October 1920. Demurrer to the bill was sustained on the ground that the time for bringing bill of review had elapsed. The alleged errors are apparent on the face of the record. Held, not error. No time having been prescribed by statute for bringing bills of review, in the absence of a showing of a clear reason for the delay, such as complainant's disability for errors apparent on the record in analogy to the time prescribed for taking appeals, a bill of review should be brought within six months after the entry of the decree sought to be reviewed.

Appeal from Circuit Court, Marion County; W. S. Bullock, judge.

COUNSEL

L. W. Duval, of Ocala, for appellant.

H. M. Hampton, of Ocala, for appellees.

OPINION

WEST J.

This is an appeal from an order sustaining a demurrer to a bill of review. The bill, answer, and final decree in the original suit are set our in full in the bill of review. It is alleged that----

'Said decree your orator insists is erroneous and ought to be reviewed, reversed and set aside for many apparent errors and imperfections, inasmuch as it appears by your orator's answer that the trust deed under which the complainants in said bill claim title was void and of no effect, and that the legal title never having passed from D. G. Watkins, Sr., individually to D. G. Watkins as trustee, that the said D. G. Watkins, Sr., was the owner in fee of the lots and parcels of land levied upon and sold under the execution as mentioned and set out in said bill of complaint, and that orator herein becoming the purchaser at said execution sale, obtained the legal title of said lots and parcels of land in said bill mentioned, and that the complainants in said bill were without title of any nature either legal or equitable at the time of the filing of the bill, and that the said final decree was erroneous in decreeing that the said Clyde and Clara Watkins were the owners of an undivided one-third interest each in and to the said lots and parcels of land therein described; for that the only title to the lots and parcels of land in said bill of complaint alleged to be in complainants was the pretended trust deed executed by D. G. Watkins, Sr., and wife to D. G. Watkins, trustee, and the said deed being woid, as to D. G. Watkins as trustee of said property designated in said trust deed was by the terms of said trust deed given possession, control, the beneficial use and uncontrolled dominion over the supposed trust property, with uncontrolled power to dispose of same absolutely at his discretion, no trust being by said deed created, and no title passing out of D. G. Watkins individually to D. G. Watkins as trustee, no decree ought to have been made or grounded thereon, but the said bill ought to have been dismissed for the reasons aforesaid.'

The bill was demurred to upon grounds, among others, that it contains no equity, laches of complainant, failure to allege facts sufficient to show complainant entitled to relief prayed, that it does not show error of law in entering the decree, that the facts alleged do not show the trust deed described to be void, and that the decree is not subject to review except upon appeal.

The court in sustaining the demurrer held that the time for filing a bill of review had expired and the case could not therefore be prosecuted. It is from this order that the appeal is taken. The bill of review was filed November 3 1921. The decree sought to be reviewed was entered on September 17, 1920, and enrolled, according to the...