29 Fla. 151 | Fla. | 1892
The appellee, S. C. Watkins, filed a bill in equity in the Orange county Circuit Court on the 21st day of July, A. I). 1887, against appellants, Sallie J. Garvin and.her husband, Wade Garvin. In this bill it is alleged that the appellee instituted a suit at law in the Circuit Court of Orange county against appellants to enforce a lien for work done and material furnished, and on the 5th day of April, A. D. 1886, obtained a judgment for one hundred and twenty-four dollars and sixty cents, and costs of suit; that execution was issued on said judgment, and levied on a house and lot in Sanford, Florida, and which was sold under said execution at sheriff’s sale to W. L. Thrasher for the sum of one hundred and sixty dollars, and a deed executed to said purchaser conveying to him said house and lot; that afterwards said appellants, Sallie J. Garvin and Wade Garvin, filed a bill in chancery against appellee, Watkins, W. L. Thrasher, the purchaser at said sale, and the sheriff of Orange county, and alleged therein that
Appellee, Watkins, further alleges in his bill that by consent of counsel for all parties, the court decreed that the judgment rendered in said suit at law in favor of S. C. Watkins against Wade Garvin and Sallie' J. Garvin, be annulled and set aside as to Sallie J. Garvin ; that the execution issued thereon be quashed,, and the said sale made thereunder be vacated and set-aside. Further that said Thrasher reconvey said premises to said Sallie J. Garvin, and said sheriff refund to* said Thrasher the purchase money he had paid on said purchase. That in said consent decree, however, it-is adjudged that the said judgment at law in favor of S. C. Watkins shall stand confirmed as against the said Wade Garvin, and upon his failure to pay said amount-
It is further alleged by appellee, Watkins, that said Thrasher reconveyed said house and lot to said Sallie J. Garvin, that said Wade Garvin failed and refused to pay said judgment, interest and costs that on the 1st day of February, 1887, execution issued on said judgment against Wade Garvin and was levied on certain personal property, which was claimed by said Sallie J. Garvin as her separate property, and on a trial in reference thereto her claim was sustained, and the sheriff of Orange county returned said execution with, the endorsement that ‘ ‘ search had been made and no property could be found upon which a levy could be made.”
The bill further alleges that the demand sought to lie enforced in said suit at law, and on which said judgment was obtained, was for work done and material furnished by appellee for the benefit of the separate statutory property of said Sallie J. Garvin in building her dwelling house in the town of Sanford, Florida, on said lot one (1), block 11, tier “B,” and which has been decreed to be the separate statutory property of said Sallie J. Garvin; and further, that the contract or agreement under which said work was done and material was furnished was made by said Wade Garvin as agent for his wife, the said Sallie J.
The prayer of the bill is for process, and that by de cree of the-court the appellants be ordered to pay the sum of money due as aforesaid, with interest thereon and costs, to appellee on or before a short day to be therein named, and in default thereof that said statutory property of the said Sallie J. Garvin, or so much thereof as may be sufficient to pay such debt, be sold by a master of the court and the proceeds applied to the payment of appellee’s said claim, or that a receiver be appointed to take charge of the said separate statutory property of said Sallie J. Garvin, or so much thereof as may be deemed sufficient, and out of the rents and profits arising therefrom, to pay the said demand of appellee, and all costs, including about twenty dollars incurred by appellee in and about the levy of the execution and the trial of the claim interposed by said Sallie J. Garvin ; and that appellee have such other and further relief in the premises as equity may require and shall seem meet.
Upon the filling of the foregoing bill, supbcena
In the petition of appeal filed here, it is alleged that the court erred in granting the various decrees in said cause, both the interlocutory decree appointing an examiner, the final decree, the decree affirming sale, and in granting the writ of assistance.
As appears from the foregoing statement, after appearance, and upon a failure to plead, answer or demur, appellee’s bill of complaint was taken as confessed on the 5th day of September, A. D. 1887, and no motion having been made to set aside the default within twenty days from that date, the decree became absolute under the rule, and the further proceedings in the cause, up to and including the final .decree, were ex parte. Under our decisions it is settled that an appeal can be taken from a final decree rendered upon a decree pro oonfesso made absolute under the rule. Hart vs. Stribling, 21 Fla., 136, and authorities cited. Upon such appeal the legality of all the proceedings prior to the default is opened for review, and the appellant can take advantage of any reversible error apparent upon those proceedings. If such error prior to the default be discovered,-the subsequent decrees and proceedings may be set aside; but if no such
The court did not overlook the fact that the indebtedness sought to be enforced in this suit arose while the Constitution of 1868 was in force. The rehearing
As before remarked, we are only concerned now about the jurisdiction of the court to render a decree for the sale of the wife’s property, and not so much to ascertain if there were reversible error in doing so. Our conclusion is, that the court had jurisdiction both of the subject matter and the parties, and that the sale of the property under the decree rendered, before any
The item of cost was improper, and we will modify the decree to this extent. It is, therefore, ordered that the decree of the chancellor for $124.60, with interest at the rate of eight per cent, per annum from the fifth day of April, A. D. 1886, and the costs of this proceeding up to the appeal, be affirmed ; and it is further ordered that appellee pay the costs of this appeal, and appellants pay the costs of the rehearing.