LAURA C. ROSENSTONE, A MARRIED WOMAN, WHO IS A FREE DEALER, COMPLAINANT BELOW, APPELLANT,
v.
FANNIE L. JOHNSTON AND WILBUR F. JOHNSTON, HER HUSBAND, AND A. H. WILDER, AS SHERIFF OF POLK COUNTY, FLORIDA, DEFENDANTS BELOW, APPELLEES
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Laura Rosenstone, a married woman who had been adjudicated a free dealer, challenged a judgment from an unlawful detainer action on the grounds that she was sued without any mention of her marital status. The Florida Supreme Court affirmed the trial court's dismissal of her bill of complaint, holding that because she was sued "as if she were unmarried" and had been adjudicated a free dealer prior to suit, the judgment was valid and equity would not intervene.
The judgment is not void. Because Rosenstone was sued "as if she were unmarried" and had been adjudicated a free dealer prior to the action, no allegation of removal of coverture disabilities was required in the petition. The court declined to address whether unlawful detainer was the proper remedy, finding that equity will not intervene to enjoin a judgment from a court of competent jurisdiction where jurisdiction over the parties and subject matter existed, no fraud was charged, and the party had opportunity to defend.
“If the action had been brought against her as a married woman then it would have been needful for the petition to have alleged that the disabilities' of coverture had been removed in the manner provided by law,'but as she was not sued as a married woman, but was sued "as if she were unmarried" the necessity of alleging the removal of the disabilities of coverture was obviated.”
Establishes the key distinction that eliminates the requirement to allege removal of coverture disabilities when a married woman free dealer is sued without reference to her marital status.
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Join FLexlaw to unlock all legal intelligenceRosenstone, a married woman and free dealer, was sued in an unlawful detainer action. The complaint in the unlawful detainer action made no reference …
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Buford, J.
In this case bill of complaint was filed in circuit court of Polls County seeking a decree to declare a certain judgment void and to acquire full relief from the operation of the judgment. Demurrer was filed to the bill and sustained, from which order this appeal was taken. The judgment was the result of an Unlawful Detainer Action.
It is contended that the judgment is void because the appellant, Laura C. Eosenstone, was a married woman and it was not alleged in the complaint filed against her that she had acquired the status of a free dealer. It is also contended before this Court that the judgment is void upon the further ground that the action for Unlawful Detainer was not available as a menas of relief under the conditions existing between the parties at the time the action was brought and the judgment obtained, though this contention is not specifically made in the bill of complaint.
The appellant has cited the cases of Crawford v. Feder, 34 Fla. 297, 16 Sou. 287; Benedict Pine-apple Co. v. A. C. L. R. R. Co., 55 Fla. 514, 46 Sou. 732; Bank v. Hirsch-Kowitz, 46 Fla. 588, 35 Sou. 22; - v. Tweddle, 35 Fla. 107, 17 Sou. 66; Rice v. Cummings, 51 Fla. 535, 40 Sou. 889 and Crawford v. Tiedman, 35 Fla. 27, 16 Sou. 900, in support of the contention that the judgment is void.
Eeference to the cases cited will disclose that the record showed in each case that the married woman was sued as a married woman, • or was sued without reference being made to coverture when, in fact, she was a married woman and had not been adjudicated a free dealer. In the instant case the action of Unlawful Detainer was brought against the appellant without any reference, appearing in the petition, to coverture and after judgment a motion was made to vacate the judgment upon the ground that she was a married woman. The affidavit in support of the motion alleged .that she was a married woman and that prior to the commencement of the action against her she had been adjudicated a free dealer by a court of competent jurisdiction pursuant to the statutes in such cases made and provided. It, therefore, appeared that the action had been brought against her “as if she were unmarried” and that in this respect the provisions of the statutes in such cases had been complied with.
If the action had been brought against her as a married woman then it would have been needful for the petition to have alleged that the disabilities' of coverture had been removed in the manner provided by law,'but as she was not sued as a married woman, but was sued “as if she were unmarried” the necessity of alleging the removal of the disabilities of coverture was obviated.
The other ground upon which it is contended here that the judgment is void attempts to present questions which can not be presented in this manner. Where the record shows that the judgment was that of a court of competent jurisdiction; that the court had acquired jurisdiction of the parties and of the subject matter, no fraud is charged and the complainant had opportunity to defend the action, equity will not intervene to enjoin. Muhlenbury Co. v. Citizens National Bank, 65 Fed. 537; Hewett v. Great Western Beet Sugar Co., 230 Fed. 394; Allen v. Allen, 97 Fed. 525; Meyer v. Calera Land Co., 133 Ala. 554, 31 Sou. 938; Maxwell v. Stewart, 22 U. S. L. Ed. 564; Peacock v. Feaster, 52 Fla. 565, — So. —; Fla. Chancery Jurisprudence (by Armstrong and Donahue) p. 501.
The judgment appears valid on its face and if it was erroneous, or was based upon an insufficient foundation, either in pleading or proof, such question should have been presented in the lower court and, if necessary, should have been determined on writ of error. The Order sustaining the .demurrer is affirmed.
Affirmed.
Whitfield, P. J., and Terrell, J., concur. Ellis, C. J., and Strum and Brown, J. J., concur in the opinion.
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Coral Constr. Corp. v. Leatha Fleeman Arlt, 177 So. 2d 890 (Fla. 3d DCA 1965)…d that an equity Court does not have jurisdiction to enjoin execution sales unless fraud is clearly, positively and unequivocally asserted as a basis for such relief. Jeffery Lumber Co. v. Coleman, 149 Fla. 704, 6 So. 2d 821; Rosenstone v. Johnston, 93 Fla. 319, 111 So. 630 and Peacock v. Feaster, 52 Fla. 565, 42 So. 889. Respondent had an adequate remedy at law, his allegation by way of a conclusion to the contrary notwithstanding. * * * (Citations omitted) * * * * * * The Parrish case, supra, has been…
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Triumph Metal Prods., Inc. v. Snyder, 133 So. 2d 344 (Fla. 2d DCA 1961)…at equity will not restrain a prosecution at law where'the question is the same at law and in equity; the necessity not being apparent to protect the complainant from oppressive and vexatious litigation. * * * ” And in Rosenstone v. Johnston, 1927, 93 Fla. 319, 111 So. 630, 631, the dismissal of a bill in equity to declare void a judgment in an unlawful detainer action was affirmed and the court said: “ * * * Where the record shows that the judgment was that of a court of competent jurisdiction, that the…
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Goldfarb v. J. A. Cantor Assocs., Inc., 123 So. 2d 50 (Fla. 3d DCA 1960)…105 So. 2d 183. The law is well settled that an equity court does not have jurisdiction to enjoin the enforcement of a judgment unless fraud is clearly, positively and unequivo [*52] cally asserted as a basis for such relief. Rosenstone v. Johnson, 93 Fla. 319, 111 So. 630; Jeffery Lumber Company v. Coleman, 149 Fla. 704, 6 So. 2d 821; Parrish v. Joyner, Fla.1951, 54 So. 2d 50; Webb v. Gregory, supra. In this case there is no charge of fraud, lack of jurisdiction or due process. Accordingly, the order ap…
Authorities Cited
- Benedict Pineapple Co. v. Atl. Coast Line R.R. Co., 55 Fla. 514 (Fla. 1908)
- Peacock v. Feaster, 52 Fla. 565 (Fla. 1906)
- The First Nat'l Bank of Pensacola v. Hirschkowitz, 46 Fla. 588 (Fla. 1903)
- Rice v. Theon Cummings and Sallie E. Cummings, 51 Fla. 535 (Fla. 1906)
- Eddins v. Tweddle, 35 Fla. 107 (Fla. 1895)
- Celeste F. Crawford v. George W. Tiedeman & Bro., 35 Fla. 27 (Fla. 1895)