CAROLINE KEARLEY HUNTER, ET VIR,
v.
MARY A. KEARLEY, ET AL., AS ADMINISTRATORS OF THE ESTATE OF SEWARD C. KEARLEY
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The Florida Supreme Court affirmed the chancellor's dismissal of the bill of complaint following the Court's prior mandate directing dismissal. The appellants sought to amend their complaint after the Court's remand, but the Court held that the chancellor properly acted within his ministerial duty to follow the mandate strictly without allowing amendments.
The Court affirmed the chancellor's dismissal of the bill of complaint. The chancellor properly followed the Supreme Court's mandate by dismissing the bill strictly as directed, and was not permitted to allow amendments contrary to that mandate. The appellants' petition for rehearing seeking modification of the opinion to permit amendments was properly denied.
“The cause is remanded, with directions to dismiss the bill of complaint.”
The Supreme Court's original mandate that the chancellor was obligated to follow strictly
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Join FLexlaw to unlock all legal intelligenceThe appellants (Caroline Kearley Hunter, et vir) filed a bill of complaint against the respondents (Mary A. Kearley, et al., administrators of the Est…
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Appellants are aggrieved by the action of the chancellor in denying a motion to amend their bill of complaint after mandate of this Court issued pursuant to the opinion in Kearley, et al., v. Hunter, et al., (Fla.) 16 So. 2nd 728. To decide the point now presented we need only to quote the concluding two sentences of that' decision: “The cause is *223remanded, with directions to dismiss the bill of complaint. It is so ordered.”
It was the duty of this Court “to reverse or affirm” or “give such . . . decree as the court below should have given . . . .” Sec. 59.34, Florida Statutes, 1941, and F.S.A. Under the latter alternative it was held, in effect, that the chancellor should have dismissed the bill, so that was what he was directed to do. It then became his ministerial duty to follow strictly the mandate. State ex rel. Dowling Co., et al. v. Parks, 99 Fla, 1264, 128 So. 837. See Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792.
Appellants must have been aware of this situation, for within fifteen days after the opinion was filed they presented to this Court a “petition for rehearing by modification of opinion” wich contained a recital that it was “addressed only to the sentence in the last paragraph of the opinion reading: ‘This cause is remanded, with directions to dismiss the bill of complaint.’ ” Petitioners apprehended, so they said, that the chancellor might entertain the view he could not allow any amendment of the bill, so they sought modification of our decision by the addition to’ the provision we have quoted of the phrase “with leave to the respondent to file amended bill of complaint.”
Any doubt appellants entertained that action of the chancellor was intended to be circumscribed must have been dispelled when this motion to alter the opinion by granting permission to amend was denied by unanimous action of the court en banc.
The final decree dismissing the bill is
Affirmed.
BUFORD, C. J., BROWN and SEBRING, JJ., concur.
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Berger v. Leposky, 103 So. 2d 628 (Fla. 1958)…ministerial act, even to the extent that consent of the appellate court is thereafter required to permit presentation of new matter affecting the cause. State ex rel. Dowling Co. v. Parks, 99 Fla. 1264, 128 So. 837; Hunter v. Kearley, 155 Fla. 222, 19 So. 2d 788; Beach Resort Hotel Corp. v. Wieder, Fla., 90 So. 2d 52; State ex rel. Mortgage Inv. Foundation, Inc., v. Knott, Fla., 97 So. 2d 265. The entry of the mandate in question therefore, in practical effect, left the litigation in a status equivalent to…
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Noeling v. State, 87 So. 2d 593 (Fla. 1956)…n the custody of the Home, compliance with the statutory requirements [*598] for notice was essential to a valid subsequent order of permanent commitment. For analogous situations under the adoption law see In re Stonehouse’s Adoption, 155 Fla. 223, 19 So. 2d 788; and In re Johnson, 157 Fla. 25, 24 So. 2d 711. For an analogous principle see Moore v. Lee, Fla. 1954, 72 So. 2d 280, 42 A.L.R.2d 1112, where we held that in a proceeding to modify a final decree awarding custody of a minor child, the defendant is…
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In re Adoption By Charles W. COX, Sr., 327 So. 2d 776 (Fla. 1976)…t to the contrary. The opinion of the district court is quashed with directions to reinstate the judgment of the trial court. OVERTON, SUNDBERG and HATCHETT, JJ., concur. BOYD, Acting C. J., dissents. . 56 So. 2d 124 (Fla.1952). . 155 Fla. 223, 19 So. 2d 788 (1944). . Ms. Goode’s new husband joined in her resistance to the Coxes’ subsequent adoption proceeding, indicating a willingness to care for and support the child. . Section 63.081, Fla.Stat. (1971) : “Service of process shall be unnecessary when…1 / 2
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
- Palm Beach Ests. v. Bula E. Croker, 106 Fla. 617 (Fla. 1932)
- The State of Fla. ex rel. The Dowling Co. v. Parks, 99 Fla. 1264 (Fla. 1930)
- Kearley v. Hunter, 154 Fla. 81 (Fla. 1944)