State Ex Rel. Groves v. Wilkins-Austin Corp. ( 1942 )

Final decree foreclosing alleged drainage district tax certificate liens upon lands was rendered April 26, 1939; foreclosure sale was confirmed February 23, 1940, the confirmation decree providing that "this case is retained for further orders."

The following words and figures are indorsed on the final decree:

"I hereby acknowledge receipt of Master's Deed and credit this Decree for the purchase price as follows:

"For Reimbursement of Taxed Cost and cost and expense of sale, $105.70; said Certificates of Indebtedness credited $1176.70 and surrendered to the Circuit Clerk for cancellation and by him cancelled, this May 16th, 1940.

C.H. Groves, by S.J. Stiggins, his Attorney."

On November 26, 1940, this Court in another case held in effect that the alleged drainage district tax certificate liens had not been duly authorized by law. State v. Trust Company of Georgia, 145 Fla. 181, 198 So. 844.

On December 21, 1940, defendants below filed a motion in the circuit court praying vacation of the final decree of foreclosure and the decree confirming the foreclosure sale setting up the subsequent decision that the drainage district tax certificates were not valid. The motion alleges that the foreclosure deed has not been "filed or recorded" by the purchaser at the foreclosure sale. This is not denied by the answer to the petition.

The Circuit Judge on March 24, 1941, vacated and set aside the final foreclosure decree of April 26, 1939, and the order confirming a sale of lands under the final decree. This was procedural error. The final decree of April 26, 1939, and the order confirming sale are not void and should not have been vacated and set aside on motion; but the motion filed December 21, 1940, may be presented to the circuit judge on an application for leave to file an appropriate bill of review in the premises. See In Re Newkirk, 114 Fla. 552, 194 So. 323. The decree of March 2, 1941, here appealed from is reversed pro forma and the case remanded, with leave to make a proper application to the circuit judge for an appropriate bill of review.

Under Section 4, Declaration of Rights of the Florida Constitution, an injured party "shall have remedy, by due course of law," that being the means by which "right and justice shall be administered without sale, denial or delay."

It Is So Ordered.

WHITFIELD, TERRELL, CHAPMAN and ADAMS, JJ., concur.

BROWN, C. J., BUFORD and THOMAS, JJ., dissent.