First National Bank v. Greig

43 Fla. 412 | Fla. | 1901

Glenn, C.,

(after stating the facts.)

Appellants abandon their first assignment of error, and discuss the remaining assignments together, contending that the title claimed by appellee Greig, trustee, derived from the sale of the real estate mentioned in the bills of complaint under the execution in favor of Greig. against Watson is invalid', because, as they insist, the judgment upon which that execution issued is void. No replications were filed to the answers, and the cause was heard in the court below upon the original and supplemental bills and answers. It appears that thé judgment in favor of Greig against Watson was entered by the clerk on June 20th, 1893, but the allegations do not clearly exclude the idea that the clerk may have cniared the judgment by direction of the court. The suit in which that judgment was obtained was begun by Greig on May 24th, 1893, against Watson and one Drought as partners doing business under the firm name of Kissimmee City Bank. The summons issued therein was served upon Droug-ht only, and no service, either personal or by publication, was ever made in that suit upon Watson. On the return day of the summons a default was entered against Watson, and subsequently, on June 20th, the judgment against him under which appellees claim title was entered. This was a separate personal judgment against Watson individually. On the return day of the summons Drought appeared, and thereafter filed his plea denying the partnership. In October, 1893, he withdrew this plea and thereupon a separate judgment was entered against him personally in the same suit. It is claimed by appellant that under the facts stated the Circuit Court never acquired jurisdiction of the person of Watson so as to enable it lawfully to enter the judgment of June 20th, 1893.

The appellant claims the right to sell the lands mentioned in the bills under a judgment obtained by it in the same court, but subsequently to the judgment obtained by Greig. The suit in which that judgment was obtained was begum by appellant against AVatson & Drought as partners under the firm name of Kissimmee City Bank, and in that suit a writ of attachment was issued on May 16th, 1893, which, upon,October 5th, 1893, was levied upon the lands .mentioned in the bills of complaint. AVatson being a non-resident, service was obtained upon him by publication in said suit, and thereafter on October 4, 1894, final judgment against said AVatson & Drought, partners as aforesaid, was obtained, and the property attached was thereby condemned to be sold. The execution under which the sale sought to be enjoined was attempted was issued upon this judgment.

It clearly appears that the lands described in the bills of complaint were the individual property of Watson at the time Greig’s suit was begun, and the court is of opinion that the lands under the circumstances stated, would be subject to sale under appellants’ execution, unless the title derived by appellees from the sale under the execution issued upon the judgment of Greig vs. Watson is valid, and therefore the only question to' be decided is, whether that sale carried a valid title to the lands as against Watson, the judgment debtor. As Watson never appeared in the suit instituted by Greig, and no service of process either personal or by publication was ever had upon him therein, and no attachment or seizure of his property was attempted in that suit until after final judgment was entered against him, it is clear that the court never acquired jurisdiction to render the judgment of June 20th, unless by virtue of the service upon his co-partner as authorized by section 1017, Revised Statutes, such jurisdiction may be maintained. That section is as follows: “When any original process is sued out against several persons composing a mercantile or other firm, the service of said process on any one member of said firm shall be as valid as if served upon each individual member thereof, and the plaintiff may after service upon any one member as aforesaid proceed to judgment and execution against them all.” The court has held that this statute is to receive a strict construction. McCallum v. Culpepper, 41 Fla. 107, 26 South. Rep. 187. It does not provide or contemplate that several or separate personal judgments against individual partners not served, may be entered in suits against partners where one only is served. It authorizes one final judgment to be entered against all the members composing a firm where service is had upon one member only, or where one dies and Kis death is suggested under the provisions of section 993 Revised Statutes against the surviving members of the firm upon such service, but the service authorized by that statute is by its terms made sufficient only for a final judgment of this character, in cases where the members not served have hot appeared in the action or otherwise submitted themselves to the jurisdiction of the court. The separate personal judgment obtained by Greig against Watson can not be supported by the service upon his copartner under this statute, and as the court had not otherwise acquired jurisdiction of his person, or jurisdiction by seizure of his individual property described in the bill, the sale made under the execution issued upon that judgment conveyed no title to appellees.

The depree of the court below is reversed, and the cause remanded with directions to enter an order dismissing the bills of complaint.

Maxwell, C., concurs. Hocker, C., absent.

Per Curiam.

The foregoing opinion has been examined by the court and is hereby approved and adopted and ordered to be filed as the opinion of the court in said cause.