ANNE W. IRVING, APPELLANT,
v.
ARTHUR E. IRVING, APPELLEE
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The appellate court affirmed the dismissal of a petition seeking to set aside a divorce decree. The court found that the petition, styled as a 'Petition in the Nature of a Bill of Review,' did not meet the requirements for an independent action to set aside a judgment under Florida Rules of Civil Procedure, as it lacked allegations of fraud upon the court.
No, the petition cannot be considered an independent action to set aside a judgment because it did not allege fraud upon the court, which is a requirement for such actions under the relevant rule.
“Bills in the Nature of Bill of Review are abolished by Rule 1.38, Florida Rules of Civil Procedure, 30 F.S.A.”
Establishes the procedural rule governing the type of petition filed.
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Join FLexlaw to unlock all legal intelligenceThe appellant filed a petition to set aside a divorce decree, alleging her attorney failed to present evidence she had provided. The lower court dismi…
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Appellant brought an action which she entitled a “Petition in the Nature of a Bill of Review.” She sought to set aside a decree of divorce which had previously been entered against her. The grounds alleged were that her attorney failed in his duty to present certain evidence with which she had furnished him. The chancellor dismissed the “Petition.”
Bills in the Nature of Bill of Review are abolished by Rule 1.38, Florida Rules of Civil Procedure, 30 F.S.A. Nevertheless, this rule does permit an independent action to set aside a judgment or decree for fraud upon the court. The allegations of appellant’s complaint did not include any fact tending to show that the court was lead into error by fraudulent action of her former husband, the plaintiff in the suit in which the decree of divorce was entered. Therefore, the petition may not bs considered as an independent action authorized by Rule 1.38, Florida Rules of Civil Procedure.
Affirmed.
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Miami Nat'l Bank v. Sobel, 198 So. 2d 841 (Fla. 3d DCA 1967)…rection that an order be entered dismissing the complaint. Reversed and remanded with direction. . 18 C.J.S. Corporations § 469(b) and 72 C.J.S. Pledges § 31. . Fair v. Tampa Elec. Co., 158 Fla. 15, 27 So. 2d 514; Irving v. Irving, Fla.App. 1963, 157 So. 2d 544; 14 F.L.P., Judgments & Decrees, § 94. . Hall v. Hall, 93 Fla. 709, 112 So. 622; Shongut v. Malnik, Fla.App.1965, 173 So. 2d 708. . State ex rel. Huntley Bros., Inc. v. Gooding, Fla.App.1963, 149 So. 2d 55, 57; Shongut v. Malnik, supra. . McLain…
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Int'l Advertising, Inc. v. Cong. Enters., Inc., 187 So. 2d 364 (Fla. 3d DCA 1966)…its purpose is to aid a plaintiff to state a new cause of action which by oversight or inadvertence he did not include in his pleadings. Cf., State ex rel. Huntley Bros., Inc. v. Gooding, Fla.App.1963, 149 So. 2d 55; Irving v. Irving, Fla.App.1963, 157 So. 2d 544. We therefore conclude that the court did not commit reversible error in denying the motion for relief pursuant to Rule 1.38 (b), Florida Rules of Civil Procedure. Affirmed. . Rule 1.38(b) provides as follows:…