Citizens National Bank of Naples v. Indiana Insurance

Supreme Court of Florida

Citizens National Bank of Naples v. Indiana Insurance

340 So. 2d 107, 1976 Fla. LEXIS 4536

CourtSupreme Court of Florida

DecidedNovember 30, 1976

DocketNo. 47944

StatusPublished

Cited by1 cases

This text of 340 So. 2d 107 (Citizens National Bank of Naples v. Indiana Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Citizens National Bank of Naples v. Indiana Insurance, 340 So. 2d 107, 1976 Fla. LEXIS 4536 (Fla. 1976).

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Opinion

HATCHETT, Justice.

When Mr. Green’s house burned down, appellees and another insuror became obligated to make the loss good. Appellant sued Green, brought in appellees as garnishees, and eventually secured default judgments against them. When appellees prevailed on motion for rehearing, appeal was taken to the District Court of Appeal, Second District. We now transfer the cause back to that court for decision on the merits.

The parties sought to invoke the jurisdiction of this Court because the trial court ruled Section 77.031, Florida Statutes (1975) unconstitutional. See generally Unique Caterers, Inc. v. Rudy’s Farm Co., 338 So.2d 1067 (Fla., 1976). Here, as in Hillsborough County Aviation Authority v. Walden, 196 So.2d 912 (Fla.1967) on retransfer 210 So.2d 193 (Fla.1968), the “trial judge did do this but his holding has never been assigned as error nor has it ever been argued in any appellate brief.” At 913. In the present ease, moreover, the appellant alleges in an assignment of error that the unconstitutionality of the statute “was irrelevant to [the] determination” being appealed. Accordingly, the cause is transferred to the District Court of Appeal, Second District. Hillsborough County Aviation Authority v. Walden, supra; Roberts v. State, 181 So.2d 646 (Fla.1966); City of Miami v. Steckloff, 111 So.2d 446 (Fla.1959).

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur. ROBERTS, J., dissents.

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HATCHETT, Justice.

When Mr. Green’s house burned down, appellees and another insuror became obligated to make the loss good. Appellant sued Green, brought in appellees as garnishees, and eventually secured default judgments against them. When appellees prevailed on motion for rehearing, appeal was taken to the District Court of Appeal, Second District. We now transfer the cause back to that court for decision on the merits.

The parties sought to invoke the jurisdiction of this Court because the trial court ruled Section 77.031, Florida Statutes (1975) unconstitutional. See generally Unique Caterers, Inc. v. Rudy’s Farm Co., 338 So.2d 1067 (Fla., 1976). Here, as in Hillsborough County Aviation Authority v. Walden, 196 So.2d 912 (Fla.1967) on retransfer 210 So.2d 193 (Fla.1968), the “trial judge did do this but his holding has never been assigned as error nor has it ever been argued in any appellate brief.” At 913. In the present ease, moreover, the appellant alleges in an assignment of error that the unconstitutionality of the statute “was irrelevant to [the] determination” being appealed. Accordingly, the cause is transferred to the District Court of Appeal, Second District. Hillsborough County Aviation Authority v. Walden, supra; Roberts v. State, 181 So.2d 646 (Fla.1966); City of Miami v. Steckloff, 111 So.2d 446 (Fla.1959).

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur. ROBERTS, J., dissents.

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340 So. 2d 107, 1976 Fla. LEXIS 4536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-national-bank-of-naples-v-indiana-insurance-fla-1976.

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