IN RE: APPLICATION OF ADA NEWKIRK, JOINED BY HER HUSBAND, T. R. NEWKIRK, PETITIONERS FOR WRIT OF PROHIBITION
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The Florida Supreme Court denied a writ of prohibition sought by the Newkirks to prevent enforcement of a circuit court decree that was based on a statute the Court had previously declared unconstitutional. The Court held that a decree based on an unconstitutional statute is not void and not subject to collateral attack via prohibition; instead, the proper remedy is a direct attack through a bill of review.
A writ of prohibition is not the proper remedy. A decree based on an unconstitutional statute is not void and not subject to collateral attack through prohibition. The proper remedy is a direct attack via an original bill in the nature of a bill of review, which allows equitable grounds for vacating the decree.
“A decree based upon an unconstitutional statute is not essentially void nor open to collateral attack since the power of a court of chancéry to decide a case otherwise properly brought before it includes' the judicial power to decide that a statute involved in the proceeding is a valid statute, even though its decision on the constitutional point be erroneous and the resultant decree be one that would not have been rendered had the court correctly decided the constitutional point.”
Establishes the core holding that decrees based on unconstitutional statutes are not void and not subject to collateral attack.
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Join FLexlaw to unlock all legal intelligenceThe circuit court issued a final decree in equity against Ada and T.R. Newkirk in favor of Highway Engineering & Construction Company, foreclosing lie…
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— Prior to the rendition of the opinion of this Court in Hillsborough County v. Temple Terrace Assets Co., 111 Fla. 368, 149 Sou. Rep. 473, the Circuit Court of Hillsborough County had rendered a final decree in equity against the petitioners, Ada Newkirk and T. R. Newkirk, in favor of Highway Engineering & Construction Company, based upon Chapter 9316, Acts of 1923, and Chapter 10139, Acts of 1925. The relief granted in that case was the foreclosure of certain liens predicated upon the constitutional validity of said Acts of the Legislature just referred to. But in Hillsborough County v. Temple Terrace Assets Company, supra, this Court held that Chapter 9316, Acts of 1923, never constitutionally passed the Legislature and therefore never became a valid statute of this State. So the relief now attempted to be obtained by this application for writ of prohibition is relief against further proceedings in the Circuit Court of Hillsborough County wherein it appears that the circuit court is about to issue and have executed its writ of assistance in aid of the enforcement of a final decree of foreclosure based upon Chapter 9316, Acts of 1923, which has been declared unconstitutional by this Court subsequent to the final decree upon which the writ of assistance is about to be ordered. Assuming that the facts alleged in the petition entitle the petitioners to be relieved of compliance with a final decree of the circuit court *554not directly attacked by appeal during the time allowed for appeal, the remedy is not prohibition. So long as the final decree of a court of chancery stands unvacated, unreversed and unmodified, the circuit court has' power to enforce it by appropriate processes available for that purpose. A decree based upon an unconstitutional statute is not essentially void nor open to collateral attack since the power of a court of chancéry to decide a case otherwise properly brought before it includes' the judicial power to decide that a statute involved in the proceeding is a valid statute, even though its decision on the constitutional point be erroneous and the resultant decree be one that would not have been rendered had the court correctly decided the constitutional point.
Complainant’s remedy is by petition in the nature of an original bill in the nature of a bill of review, by which means a final decree in chancery can be directly attacked and s'et aside upon equitable principles, through resort to those equitable processes which are not collateral but direct in their nature.
To maintain a proceeding in prohibition after final decree in equity to restrain the ordering of processes about to be issued to enforce such a decree, the decree attacked must not only be erroneous or voidable, but must be wholly void and therefore subject to collateral attack. Otherwise, the remedy is a direct attack on the decree by an original bill in the nature of a bill of review. See Sapp v. Warner, 105 Fla. 245, 141 Sou. Rep. 124, 143 Sou. Rep. 648, 144 Sou. Rep. 481; Miller v. Cook, 135 Ill. 190, 25 N. E. Rep. 756, 10 L. R. A. 292; Miami Bank & Trust Co. v. Mahlstedt, 107 Fla. 282, 144 Sou. Rep. 659.
Where a chancery court’s jurisdiction to'hear and determine an equity cause has been once duly acquired by it *555through proper filing of the suit and service of process upon the parties, the fact that the relief granted by a final decree in such suit is predicated upon an unconstitutional statute that the court necessarily had the right and power to decide was constitutional in order to grant the relief prayed for and awarded, does not make the resultant final decree void, nor is such decree rendered subject to collateral attack, merely because a court of superior appellate jurisdiction has, subsequent to the rendition of such final decree, declared unconstitutional the underlying statute upon which the final decree was awarded. This is true, although such subsequent decision of the court of superior appellate jurisdiction may afford equitable grounds upon which to directly attack and have reversed and vacated such final decree upon equitable considerations governing proceedings in the nature of an original bill in the nature of a bill of review.
The rule nisi in prohibition is' denied.
Whitfield, Terrell and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Jackson Grain Co. v. LEE, 150 Fla. 232 (Fla. 1942)…ourt at the behest of the plaintiffs in the injunction suit during the period that the injunction remained in full force and effect. During that period the Comptroller was compelled to act in accordance with the injunctive decree See In Re: Newkirk, 114 Fla. 552, 154 So. 323. The injunction referred to was the same injunction involved in the decision of this Court in Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464, wherein we [*235] held that it could be attacked and dissolved on bill in the nature o…
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Shaw v. Hamm, 133 Fla. 722 (Fla. 1938)…r, would not have been rendered. In Brown v. Oehler, et al., supra, it was also held that bill of review is appropriate method of accomplishing in equity that which at law is accomplished by writ of error coram nobis. In re application of Newkirk, 114 Fla. 552, 154 Sou. 323, it was held that final chancery decree could be directly at [*730] tacked and set aside on equity principles by means of petition in nature of original bill of review through resort to direct equitable processes. It, therefore, follo…
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Burnetha Fleming v. Fleming, 130 Fla. 264 (Fla. 1937)…in the nature of a bill of review or an original bill is immaterial because they are in effect the same thing and may be used for the same purpose. Gamble v. Gamble Holding Corporation, 123 Fla. 344, 126 Sou. 886. In re Application of Ada Newkirk, 114 Fla. 552, 154 So. 323, it was held: “Complainant’s remedy is by petition in the nature of an original bill in the nature of a bill of review, by which means a final decree in chancery can be directly attacked and set aside upon equitable principles, through…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- William E. Sapp and his wife v. Warner, 105 Fla. 245 (Fla. 1932)
- Rivers v. City of Gainesville, 107 Fla. 774 (Fla. 1932)
- Miami Bank & Tr. Co. v. Minna Marie Mahlstedt, 107 Fla. 282 (Fla. 1932)
- Hillsborough Cnty. v. Temple Terrace Assets Co., 111 Fla. 368 (Fla. 1933)