W. B. BROWN
v.
GEORGE OEHLER AND J. H. THERRELL, AS LIQUIDATOR FOR BISCAYNE TRUST COMPANY
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W. B. Brown sought permission from the Florida Supreme Court to file a supplemental bill in the nature of a bill of review to attack a previously affirmed final decree. The Court denied the application, finding that the applicant's delay in filing the petition constituted laches without sufficient excuse.
The Supreme Court denied permission to file the supplemental bill of review. While the Court recognized that such a bill is the appropriate equitable remedy for attacking a decree based on errors of fact unknown to the chancellor, it held that permission cannot be granted without application to and approval by the appellate court that affirmed the decree, and that the applicant's substantial delay in filing the petition constituted laches precluding relief absent strong excuse.
“A supplemental bill in the nature of a bill of review (now permissible in the form of a petition under the 1931 Chancery Act) is the appropriate method of accomplishing in equity that which at law can be duly accomplished by a writ of error coram nobis.”
Establishes the nature and purpose of a supplemental bill of review as an equitable remedy
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Join FLexlaw to unlock all legal intelligenceA final decree had been entered in the lower court and was appealed to the Florida Supreme Court, which affirmed the decree on July 17, 1932. The case…
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— This is an application by W. B. Brown for permission to apply to the Circuit Court for permission to file a supplemental bill in the nature of a bill of review, the final decree in the cause having been heretofore brought to this Court by an appeal and here affirmed. See Brown v. Oehler, 111 Fla. 564, 149 Sou. Rep. 521.
A supplemental bill in the nature of a bill of review (now permissible in the form of a petition under the. 1931 Chancery Act) is the appropriate method of accomplishing in equity that which at law can be duly accomplished by a writ of error coram nobis. In equity such a proceding as is here invoked is the proper method of attacking for purpose of correction, a decree in equity which, it is alleged, was rendered on account of some error in fact which, if it had been known to the chancellor, would have prevented the entry of the decree attacked.
*59Like a writ of error' coram nobis, a supplemental bill in the nature of a bill of review, may be employed to revoke the jurisdiction of a court of chancery to recall one of its own adjudications made while some fact existed which, if before the court, would have prevented the rendition of the final decree, and which, without any fault or negligence of the party presenting it, was not earlier presented to the chancellor. It cannot, however, after the decree to which it is addressed has been affirmed by the appellate court, be entertained without permission duly applied for and given by the appellate court which affirmed the decree. So the object of the present petition is to obtain such permission in the present case to re-open the final decree heretofore affirmed by this Court on July 17, 1932.
Our conclusion is that the returns to the rule to show cause why permission to proceed should not be given as prayed, constitute a sufficient showing of cause why the permission in this case should not be granted. The case was finally disposed of here on the 6th day of September, 1933. The present petition was not filed until January 30, 1934, which was during a subsequent term of the Supreme Court.
Assuming that delaying the application beyond the term did not oust the jurisdiction of the Supreme Court to grant the permission prayed for, it nevertheless amounted to such laches as requires a denial of the permission sought, in the absence of some very strong showing of excuse for applicant’s' apparent, tardiness in the matter. Such excuse has not been made to appear in this case, so the permission to file a supplemental bill in the nature of a bill of review to attack the decree of the Circuit Court as affirmed by this Court will be denied.
*60Permission for further proceedings in Circuit Court denied.
Davis, C. J., and Whitfield, Terrell and Buford, J. J.r ' concur.
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Citator
Cited By
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Shaw v. Hamm, 133 Fla. 722 (Fla. 1938)…e. In Miami Bank, etc., Co. v. Mahlstedt, 107 Fla. 282, 144 Sou. 659, it was held that a bill in the nature of a bill of review is the proper way to direct the attack on final decree either for fraud or other equitable reasons. In Brown v. Oehler, 114 Fla. 57, 152 Sou. 862, it was held that a supplemental bill in the nature of a bill of review is the proper method of attacking for purpose of correction of decree in equity which was allegedly rendered because of error in fact which, if it had been known t…
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Dennis v. Ivey, 134 Fla. 181 (Fla. 1938)…ies propounded numbered from 1 to 68, and inclusive of exhibits, appears in the transcript from page 47 to 95. We think the case at bar is ruled by the case of Drawdy Invest [*187] ment Co. v. Robinson, 96 Fla. 397, 118 So. 157. See Brown v. Oehler, 114 Fla. 57, 152 So. 862; Hall v. Hall, 93 Fla. 708, 112 So. 622; Reynolds v. Florida Cent. & P. R. Co., 42 Fla. 387, 28 So. 861, 22 Sup. Ct. 176, 183 U. S. 471, 46 L. Ed. 283; Yager v. North & South Alafia River Phosphate Co., 82 Fla. 38, 89 So. 340; Taylor v.…
Authorities Cited
- Coulson v. State, 110 Fla. 279 (Fla. 1933)
- Brown v. Oehler, 111 Fla. 564 (Fla. 1933)