ART LEWIS, PETITIONER,
v.
THOMAS J. KELLY, AS SHERIFF OF DADE COUNTY, FLORIDA, RESPONDENT (TWO CASES)
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Art Lewis seeks to quash an injunctive order issued without bond by a circuit court judge who had not previously participated in the underlying equity case. The Florida Supreme Court holds that while the judge had authority to issue the injunction, he erred in failing to require an injunction bond as mandated by statute, even though the injunction was labeled a 'Constitutional Writ.'
The Circuit Court Judge had authority to issue the injunction despite his prior non-involvement in the case, as all Circuit Judges possess equal authority under Florida law. However, the Chancellor erred by failing to require an injunction bond as mandated by Section 64.03, F.S.A., regardless of the 'constitutional writ' designation. The judge should have either required posting of an injunction bond or followed statutory procedures allowing bondless injunctions only upon affidavit that the party cannot afford one.
“Although the Circuit Courts have the constitutionally granted power to issue writs of injunction, they are, nevertheless, required to give effect to Section 64.03, F.S.A., and must follow its provisions in the exercise of such power.”
Establishes that constitutional authority to issue injunctions does not exempt courts from statutory procedural requirements regarding bonds.
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Join FLexlaw to unlock all legal intelligenceBen Lewis filed an equity complaint against Art Lewis in February 1951 seeking dissolution of an alleged partnership, an accounting, and an injunction…
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TERRELL, Justice.
Two returns to as many writs of habeas corpus based on contempt are involved-in this litigation. The first order of contempt was entered July 12, 1954, for violating an injunctive order dated March 4, 1953. On . the following day, July 13, writ of habeas corpus was issued by this Court on petition of Art Lewis, who was released on $2,500 bond. July 14, 1954 the Circuit Court entered a second order of commitment for Art Lewis, notwithstanding this Court’s order of July 13, under which he was at liberty on bond. On account of the second commitment Art Lewis again applied to this Court for writ of habeas corpus and was released July 17, 1954 in custody of his attorney. Returns to both writs were heard July 26, 1954.
It appears that the partial summary final decree dated December 17, 1952, affirmed in, Lewis v. Lewis, Fla., 73 So. 2d 72, dissolved the injunction in the cause. It also appears that the lower court’s injunction involved in Lewis v. Lewis, Fla., 66 So. 2d 260, was not entered until March 4, 1953, fifty-six days after Art Lewis pledged his stock to Frank Miller to secure future advances, and that under Section 697.04, F.S.A. that pledge was effective to the same extent as if “such future advances were made on the date of the execution” of the receipt dated January 7, 1953.
The record is insufficient to establish that a valid pledge was executed at any time other than on January 7, 1953. This being true, the pledge of the stock certificate was in no way affected by the order of March 4, 1953, because the pledge was effective as of January 7, 1953.
H. E. Ploof Machinery Co. v.
Fourth Nat. Bank of Florida, 67 Fla. 36, 64 So. 360, and Alta-Cliff Co. v. Spurway, 113 Fla. 633, 152 So.
731. If there was no injunctive order in effect at the time Lewis pledged his stock on January 7, 1953, how could he have been said to have wilfully violated one? The subsequent exchange by the pledgor, Miller, of the one certificate for five certificates, representing the same number of shares, was not in violation of the pledge contract and cannot under the circumstances be considered contempt by the petitioner. In this connection much is said in briefs about the distinction between civil and criminal contempt, about which there appears to have been considerable misunderstanding. That distinction is defined in Seaboard Air Line Ry. Co. v. Tampa Southern R. Co., 101 Fla. 468, 134 So. 529, and in Dangel on Contempt, pages 5, 6, 76 and 77. We do not consider it necessary to discuss that question at this time except tó say that the alleged contempt involved in this case was civil in nature.
For the reasons thus stated, the first commitment for contempt was illegal and void. The second commitment, of July 14, 1954, was illegal and void because the jurisdiction of' the court below ovér the person of petitioner was suspended by virtue of the habeas corpus and bond issued by this Court July 17, 1954. Farish v. Smoot, Fla., 58 So. 2d 534.
From this it follows that both commitments were illegal and void so the petitioner must be and is hereby discharged.
It is so ordered.
ROBERTS, C. J., and THOMAS and HOBSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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S. Dade Farms, Inc. v. Peters, 88 So. 2d 891 (Fla. 1956)…r brief in support of the petition, the respondents in their reply brief do not comment on the case or in any way undertake to distinguish it. The principle applied in the case last cited was again applied by this court in Lewis v. Kelly, Fla.1954, 75 So. 2d 761, involving an injunctive order of March 4, 1953, against a pledge of certain stock. It was shown that the stock had been pledged some fifty-six days prior to the entry of the decree. In the opinion Mr. Justice Terrell raised the question, “If there…
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Art Lewis v. Lewis, 78 So. 2d 711 (Fla. 1955)…im to jail and ordered him to pay as a penalty all costs and certain attorney’s fees. From said judgment he appealed to this Court and petitioned for habeas corpus. The writ was [*712] granted and the petitioner was discharged. Lewis v. Kelly, Fla., 75 So. 2d 761. On authority of the last cited case, Lewis now moves to “reverse order appealed from upon authority of Art Lewis, Petitioner, v. Kelly, Respondent.” Said motion charges that under Lewis v. Kelly, supra, the commitment imposed was illegal and void.…
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In re Local Lodge NO. 1248 OF Int'l Ass'n OF MacHinists, 131 So. 2d 29 (Fla. 1st DCA 1961)…roceeding petitioned the Florida Supreme Court for a writ of habeas corpus to test his detention under the judgment of contempt. The writ was granted and pursuant to the return thereto the petitioner, Lewis, was discharged. See Lewis v. Kelly, Fla., 75 So. 2d 761. At that time the civil appeal was pending on motion of the appellee to dismiss the appeal on the ground that the contempt order could be adjudicated only by habeas corpus. Following the decision in the habeas corpus proceeding, Lewis, the appellant…
Authorities Cited
- Seaboard Air Line Ry. Co. v. Tampa S. R.R. Co., 101 Fla. 468 (Fla. 1931)
- Farish v. Smoot, 58 So.2d 534 (Fla. 1952)
- Lewis v. Lewis, 66 So. 2d 260 (Fla. 1953)
- H. E. Ploof Mach. Co. & State Bank of Fla. v. Fourth Nat'l Bank of Fla. & Others, 67 Fla. 36 (Fla. 1914)
- Lewis v. Lewis, 73 So. 2d 72 (Fla. 1954)
- Alta-Cliff Co. v. Spurway, 113 Fla. 633 (Fla. 1933)