*1 442 Rellim
Properties Company v.
Investment
151 Fla.
Company,
(2nd)
136,
295,
9 So.
is relied on to
this contention.
n
The facts in the latter case are so materially different
from those in the case
bar
at
In our
point.
view, this
State
point
Harrington
ex rel.
concluid
730,
610,
City
City
188 So.
Pompano,
Sara
Skillin,
724,
sota v.
The the circuit court is accordingly reversed directions to reinstate the bill of complaint proceed with accordingly. ADAMS,
BUFORD, J., JJ., C. CHAPMAN and concur. LUCIAN, Forney Executrix FREDERICKA as of the Estate of Leonore Burkhart, Deceased, v. THE SOUTHERN OHIO BANK SAVINGS COMPANY, Executor as Estate of William & TRUS T Burkhart, Deceased. January Term, 1944 27 May En 1944 Banc Rehearing June 1944 Denied BROWN, THOMAS, SEBRING, JJ., ADAMS CHAPMAN, TERRELL JJ., TERRELL, J., dissenting: an appeal interlocutory injunction restrain- enforcement of a
ing the decree of this Court dated June 1941, dissolving matrimony the bonds of between William S. Forney latter, and Leonore awarding Burkhart alimony, suit money was the plaintiff, who pay the defendant directing plaintiff $31,430.00, defendant, found to be due her from interest with and ad- a Pontiac automobile to be the judicating property of the of the case have Different appeared.in plaintiff. times or more but we do not a dozen detail Court them. are both deceased. This The Burkharts suit having been executor of the estate of William S. brought the estate of executrix of Lenore Forney Burk- main strangers contended both hart decreeing money- part *2 illegal William is and void S. Burkhart. a because Burkhart was at the time nonresident of the State cause, of that he did not appear service not secured personal upon was that his seized, was not or attached property sequestered and that not jurisdiction over his was secured. person Pennoyer v. 95 U. S. 24 L. is relied on Ed. this contention.
The decisive is whether or not the question court secured over the of Burkhart or person his property lo- subject cated this State that was to the judgment.
, clarify It will the to state the atmosphere outset that at. the reason for of process, sole whether personal service constructive, a put such the defendant on no- tice of the him and afford him a proceeding chance do so. If he may to defend if elect to appears voluntarily and submits himself to the of the court the pur- of pose process accomplished. affecting true that the decisions quite parties but it is subject confusing matter somewhat had maintained a home in Florida for
shown that the parties involved many years, juris- that the was within the of Florida and that the marital domicile diction of the courts of Florida. -The of com- was the State bill parties divorce, temporary permanent alimony, for plaint prayed and for the money, accounting interpreta- suit counsel agreement entered into of a settlement be- prenuptial tion parties. tween the for relief every ground contested set out in motion to quash motion by special appearance, bill pleadings of these it was ulti- disposition dismiss. On 21) (Burkhart
mately held motion to quash the husband’s general a not constitute and dismiss did person trial court husband no additional sought husband relief. the said where entered favor of Later the circuit money fees and suit when for plaintiff for prohibition against to this Court applied by counsel circuit court to restrain it from entering personal judgment against him because he had been served with A process. nisi rule was entered to which Mrs. Burkhart filed a demurrer and the circuit court filed its answer on consideration of the issue thus made. The rule nisi quashed was and the petition dismissed, was the court holding that the orders could be on appeal. reviewed
In the suit the prohibition question jurisdic- the court’s . tion of the matter fully presented and in litigation it shown the court had seized and sequestered the property by the of a appointment receiver to take and hold it. The court further found that in view of the material domicile of the Florida parties in the courts of Florida had power and au- *3 thority to enforce their n the properties. Court, Circuit, Burkhart v. Circuit Eleventh al., Judicial et 457, 1 So. 872. The case Pennoyer v. relied on by respondent, was disposed theory of on the that the defendant awas non- resident, the judgment that him against was a personal one demand, for a money that process him, was not served on he that did not appear voluntarily and that his property was seized or sequestered by the court. The was, defendant in words, not on notice of the action against him and had no chance to defend his rights. bar,
In the case at plaintiff and defendant had long been part time residents of the State of they owned here, a home the res here in the of the court, they purposely established domicile, their marital every phase of the contest was characterized by the presence of defendant or his counsel to protect his .rights, there was not a in step the cause that he did contest, not vigorously not possibly have done more to protect his rights could if he had had a basket of processes served on he was ad- vised of every step the cause at the time it was taken and took steps promptly protect rights. his His conduct every satisfied element of a voluntary appearance. Tallentire, al., et (2nd) 385, one of the dozen phases of this case we held that
'445 attacks on unnecessary wanton permit the law does a third party as valid they will stand judgments in- and substantial he has a real unable to show that who is is bound and one the law which avoiding judgment terest dead more Burkhart has been protect. is more than two years than two final here is the complainant old. The years original one-half stranger and is a of Burkhart’s estate executor to be and is not shown has no interest It give such as would affected here. any standing that holding
I am mindful of the decisions a general did not constitute appearance Burkhart’s special trial validity had the but we have not previously defendant manner revealed in this case. in the judgment challenged conclusively shows history litigation think that of this it, that he was party precipitating that Burkhart was every himself at ably step of and defended conscious voluntary to a his conduct amounted to raise this estopped question. and that parties show conclusively supported is more holding litigation very beginning ing that Burkhart master, held and this Court the chancellor and' in this State had their marital domicile and his wife both the courts of Florida had *4 Bank v. Fourth National Pennington matter. Ct. Cincinnati, L. Ed. 37 S. 243 U. the state’s exercise of essential only held that the border, seizure its its are of the res within power presence opportunity of proceedings at the commencement con this case facts stated be heard. Under the the owner to the case at bar. cludes be granted should for certiorari petition
I think the dissent therefore quashed.- the order appealed BUFORD Justice Mr. Chief say authorized to am join Mr. Justice CHAPMAN CHAPMAN, J.,