Opinion
November 21, 1950. Rehearing Denied January 5, 1951.
Appeal from the Circuit Court for Osceola County, Frank A. Smith, J.
Claude L. Gray, Orlando, and Dorothea Watson, Orlando, for appellant.
Thacker Thacker and Jay Johnston, all of Kissimmee, for appellee.
Before reviewing the order now attacked it is well to draw attention briefly to our decision in the litigation when it first appeared here. Warfield v. Drawdy, Fla., 41 So.2d 877.
The present appellee, then appellant, Nora Warfield, had sued to set aside certain deeds to her adversary, Paul M. Drawdy. For reasons given in our opinion we declined to interfere with the decree of the chancellor disallowing an amendment of the bill to conform to the proof, and we affirmed his decree dismissing the bill of complaint. Of course the effect of this judgment was to leave the deeds undisturbed.
After the mandate had been sent to the chancery court the grantee, Drawdy, petitioned for a writ of assistance to put him in possession of the properties in question, on the theory that since the decree had dismissed the bill to set aside the deeds, nought remained to be done but to secure to him possession of the lands described in them. Why he, as grantee, did not have possession already the petition for assistance does not reveal.
Rule to show cause was issued and answer filed; then the court denied the motion to quash the return and discharged the writ.
His reasons for doing so were quite sound.
The petitioner, now become appellant, had sought no relief whatever as defendant in the original suit and had been granted none. He had been content simply to traverse the allegations of the plaintiff's bill. He was successful, largely if not wholly, because of the novel conduct of the plaintiff in assuming a definite position in her pleading, supporting it positively by her testimony, then repudiating what she had sworn, giving an entirely different version and seeking an amendment to coincide with what she eventually said was true.
The question now is whether, by merely thwarting the appellee's effort to set aside the deeds, the appellant, ipso facto, is entitled to a writ of possession as if an affirmative decree granting him some relief or other had been rendered.
Such relief is authorized by the statute, Section 63.69, Florida Statutes 1941, and F.S.A., providing: " When any decree or order is for the delivery of possession, upon proof * * * of a demand and refusal to obey the decree * * *" the party shall be entitled to a writ of assistance. (Italics furnished.)
We find nothing in the record which could be construed as an order for the delivery of possession, the prerequisite to the writ. As the name implies, the writ is an aid to the enforcement of the decree, but here nothing has been adjudicated in favor of the appellant requiring or justifying execution. Dixon v. Dixon, 140 Fla. 166, 191 So. 292.
Having this view of the main question we see no necessity for consideration or determination of the incidental questions.
The chancellor properly exercised his discretion in declining the writ, and his action is
Affirmed.
ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.