CARLYLE HERRING AND BESSIE M. HERRING, HUSBAND AND WIFE, APPELLANTS,
v.
COUNTY OF ESCAMBIA, FLORIDA, ET AL., APPELLEES
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Appellants sought declaratory judgment challenging an Escambia County ordinance as unconstitutional. The trial judge dismissed the complaint, finding declaratory relief to be an improper remedy. The appellate court reversed, holding that declaratory judgment was a proper remedy in this context and remanded for consideration of the ordinance's constitutionality.
A declaratory judgment is a proper and appropriate remedy for challenging the constitutionality of a county ordinance. The court reversed the trial judge's finding that declaratory relief was improper and remanded the case for further proceedings to address the merits of the constitutional challenge.
[1] A declaratory judgment action is a proper remedy to determine the constitutionality of an ordinance.
[2] A court should not dismiss a complaint for declaratory judgment solely on the grounds that declaratory relief is an improper remedy when the facts support its appropriate…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Whether or not declaratory relief was a fit and proper remedy and whether, if declaratory relief was the proper remedy, the questioned ordinance was constitutional.”
The two issues the trial judge identified for briefing after trial on the merits.
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Join FLexlaw to unlock all legal intelligenceAppellants Carlye and Bessie Herring filed a complaint for declaratory judgment seeking to have their rights under a County of Escambia ordinance dete…
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PER CURIAM.
‘ A complaint for declaratory judgment was filed by appellants seeking to have determined their rights under a certain ordinance of the County of Escambia, it being appellants’ contention that the ordinance was unconstitutional. At the conclusion of a trial on the merits the learned trial judge asked for briefs on two points: Whether or not declaratory relief was a fit and proper remedy and whether, if declaratory relief was the proper remedy, the questioned ordinance was constitutional. Both parties submitted briefs in support of the propriety of the declaratory judgment action. The learned trial judge thereafter entered a final judgment in which he found that the plaintiff was not entitled to a declaratory judgment whereupon the complaint therefor was dismissed. Both parties urge in their briefs on this appeal, and urged during oral argument, that the learned trial judge erred in finding and holding declaratory relief to be an improper remedy. We agree and reverse.
No useful purpose will be accomplished by lengthening this opinion with a long and involved recitation of the facts and applicable law. Suffice to say that our examination of the record on appeal reveals that the case sub judice is factually very similar to Brown v. Foley, 1947, 158 Fla. 734, 29 So. 2d 870, wherein our Supreme Court held a declaratory judgment action to be proper. (See also Husband v. Cassel, Sup.Ct.Fla.1961, 130 So. 2d 69 and R-C-B-S Corporation v. City of Atlantic Beach, Fla.App. 1st 1965, 178 So. 2d 906.)
Since the trial judge did not, in the final judgment here appealed, pass upon the merits of the controversy viz: The constitutionality of the challenged ordinance, we do not consider same here.
Reversed and remanded for further proceedings consistent herewith.
BOYER, Acting C. J., and McCORD and MILLS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cnty. OF Escambia v. Carlyle Herring and Bessie Herring, 343 So. 2d 63 (Fla. 1st DCA 1977)…king to have a portion of Escambia County Ordinance 73-9 declared unconstitutional. By an order of dismissal, the trial court held that the declaratory judgment suit was improperly brought, but this Court reversed. See Herring v. County of Escambia, 308 So. 2d 123 (Fla. 1st DCA 1975). Upon remand and after a final hearing at which several witnesses testified, the trial court found the ordinance unconstitutional. The County has appealed, essentially claiming that the ordinance is a valid exercise of the police…
Authorities Cited
- Husband v. Cassel, 130 So. 2d 69 (Fla. 1961)
- R-C-B-S Corp. v. City OF Atl. Beach, 178 So. 2d 906 (Fla. 1st DCA 1965)
- Loraine Saunders Brown v. Foley, 158 Fla. 734 (Fla. 1947)