J. W. STEWART, APPELLANT,

v.

SAM B. BERGER AND IRENE F. LEPOSKY, AS ACTING SECRETARY OF JAFRA STEEL CORPORATION, A FLORIDA CORPORATION, APPELLEES

Fla. | 1959-03-11

TERRELL, C. J., and ROBERTS, THORNAL and O’CONNELL, JJ., concur.

109 So. 2d 765 Florida Supreme Court (1959) Negative Treatment

Cited by 10 cases

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Holding

An order attempting to set aside a final decree, which was not appealed and was not void ab initio, is invalid and must be quashed.

Facts & Procedural History

A final decree was entered in 1955, adjudicating stock ownership, and was not appealed. An order in 1958 attempted to set aside this decree, citing er…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Final Decree Void Judgment Election Of Remedies Collateral Attack

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Opinion of the Court

DREW, Justice.

The facts of this case amply appear from opinions, upon previous appearances of the parties in this Court.1

This appeal is from an order,2 dated October 14, 1958, which purports to set aside the final decree entered in the cause on September 6, 1955. This decree was *766never appealed, and the only activity in the proceeding during the interim period was by way of a petition for supplementary injunctive relief which was granted but vacated upon appeal in June 1958.3

While, as already indicated, no appeal was taken from the final decree entered in September, 1955, its terms and effect were reviewed in the light of the full record brought here in connection with the ensuing injunction, and the following analysis was made:

“This decree adjudicated, as between all the parties, the issue of title to the 2500 shares of stock in Jafra Steel Corporation, and found that the appellant Berger failed to meet the burden of proof required to prevail over the appellee J. W. Stewart, who held the stock as pledgee. The master’s report upon which the decree was predicated also contained the statement 'that plaintiff elected his remedy and had an adjudication of the matter which is appealable’ in the above mentioned mandamus action. The decree, however, is not put upon this ground, but finds upon the merits that the appellee J. W. Stewart owned the stock in question by virtue of purchasing upon foreclosure of the pledge.”4

There is in the record now before us no basis for a contrary finding as to the nature of the decree entered. The recitations of the court in its order vacating that decree are somewhat misleading, but our conclusions hereinafter stated need not be bolstered by a contest over the precise terms or underlying predicate for the decree, or the effect of appellate review of the injunc-tive matter.5

The order under consideration shows on its face a fatal insufficiency. The decree assailed was, under firmly established rules of law, beyond the power of the court to alter or set aside by direct action upon the grounds specified, and was, of course, impervious to collateral attack except upon the theory that it was void ab initio.6

“In those cases in which the court interferes after the term, to vacate or annul a judgment, the interference can only be justified on the ground that the judgment was procured in such a manner as to indicate that it was not intended to be authorized by the court, or if authorized by the court, that it is nugatory for want of jurisdiction. * * * ” 7 No contention is made that the circumstances surrounding the entry of the decree were such as to affect the court’s jurisdiction to decide the issues then before it, and even if, contrary to record indications, there existed some misapprehension as to the signifiance or effect of related litigation, it would necessarily be an intrinsic and unverifiable judicial “mistake” not subject to change under our cases.8

The order is accordingly quashed and the cause remanded with directions that the petition be dismissed.

TERRELL, C. J., and ROBERTS, THORNAL and O’CONNELL, JJ., concur.

. Reading in part as follows:

“This Court, as a Court of equity sitting in chancery feels that from all of the circumstances that have preceded the facts in this case that justice will best be served to all parties by setting aside the Final Decree entered by this Court on September 6, 1955 and giving all parties a full opportunity based upon the facts and the record before this Court at the present time.

“This Court finds that it erroneously and through an error as a matter of law erroneously entered the decree of September 6, 1955 upon the merits that the appellee J. W. Stewart owned the stock in question by virtue .of purchasing upon a foreclosure of the pledge. This as a matter of law and as a matter of fact is incorrect, since the Master in his report based his decision upon the statement ‘that plaintiff elected his remedy and had an adjudication of the matter which is appealable in the above mentioned mandamus action’. The plaintiff did appeal said mandamus action which decision was rendered in favor of the plaintiff herein. See Berger v. Beyerle, Fla., 93 So.2d 67. It appears from the record that the decision of this Court in this ease was predicated upon the decision rendered in the mandamus proceeding and since said mandamus proceeding has been reversed by the Supreme Court of the State of Florida that the Final Decree in this cause should also be set aside and a new trial be had based upon the new decision in the former mandamus suit.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Morrison v. Morrison, 122 So. 2d 199 (Fla. 1st DCA 1960)

…dingly reversed and the cause remanded for further [*202] proceedings consistent with the views herein expressed. Reversed. STURGIS and CARROLL, DONALD K., JJ., concur. . Mabson v. Christ, 96 Fla. 756, 119 So. 131. . Stewart v. Berger, Fla.1959, 109 So. 2d 765. . Quality Courts United v. Jones, Fla.1952, 59 So. 2d 20. . F.S. Sec. 65.14, F.S.A.…
In re Est. of Earl M. Weymer, 199 So. 2d 495 (Fla. 4th DCA 1967)

…’s intent.” Fortunately or not, depending on viewpoint, this undertaking represents the correction of an intrinsic and unverifiable judicial mistake and as such collides with the settled law of this state as expressed in Stewart v. Berger, Fla.1959, 109 So. 2d 765, and Morrison v. Morrison, Fla.App.1960, 122 So. 2d 199. Further, I do not understand that there has been any relaxation of this view since the enactment of Rule 1.38, supra. Taking a still different tack, if a mistake of law be not so categorized…
Emil P. Verdi, Jr. v. Metro. Dade Cnty., 684 So. 2d 870 (Fla. 3d DCA 1996)

…void. Consequently, Verdi’s failure to timely appeal those findings and/or assessment of fines and costs to the circuit court appellate division pre- [*875] eludes him from collaterally attacking the findings in the action below. Stewart v. Berger, 109 So. 2d 765, 766 (Fla.1959); see also Key Haven Associated Enters, v. Board of Trustees, 427 So. 2d 153, 157-58 (Fla.1982) (limiting litigants, who wish to contest the validity of executive branch agency action, to administrative remedies and direct appeal), su…

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Authorities Cited

State Ex Rel. Lorenz v. Lorenz, 149 Fla. 625 (Fla. 1942)
Berger v. Leposky, 103 So. 2d 628 (Fla. 1958)
State of Fla. on Relation of Mortg. Inv. Found., Inc. v. Knott, 97 So. 2d 265 (Fla. 1957)
State of Fla. ex rel. Ethel May Coleman v. Williams, 147 Fla. 514 (Fla. 1941)
Hoffman v. Etta Hoffman, 92 So. 2d 524 (Fla. 1957)
Gustave Albert Sauer v. Sauer, 154 Fla. 827 (Fla. 1944)
Berger v. Beyerle, 93 So. 2d 67 (Fla. 1957)

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