23 So. 2d 674 | Fla. | 1945
Lead Opinion
On consideration of this case June 6, 1944, certiorari was denied.
Counsel are at variance as to questions presented. Appellant contends that appellee should not have been permitted to intervene that he should have been permitted to prove his bill and that Burkhart's conduct amounted to a general appearance. The appellee contends on the other hand that the whole question turns on the question of service on Burkhart and that that question is concluded against appellant by Pennoyer v. Neff,
In Rorick v. Stilwell,
Reversed on authority of Rorick v. Stilwell, supra, for further proceedings.
CHAPMAN, C. J., BUFORD and THOMAS, JJ., concur.
BROWN and SEBRING, JJ., dissent.
ADAMS, J., not participating.
Dissenting Opinion
Upon a re-study of the record in this case I feel impelled to recede from my concurrence in the opinion prepared by Mr. Justice TERRELL. In the case of Burkhart v. Burkhart,
Nevertheless, I now feel that, despite these views, an outright affirmance of the decision of the lower court should be entered because the rule announced in the opinion first above cited had become the law of the case and should be followed therefore in this litigation.
ADAMS, J., concurs.
Addendum
I think the opinion should be affirmed outright for the reasons given in my opinion filed 20 July, 1945.
ADAMS and SEBRING, JJ., concur.
Addendum
My attention has been called to certain factual errors contained in my former opinion filed in this case on July 20th, 1945, originally written as a dissenting opinion, and the same has been withdrawn with the permission of the Court, and, with due apologies, this rewritten opinion is submitted in its stead.
This is an appeal from a final decree rendered by the Circuit Court of Dade County on June 19, 1944, in favor of the plaintiff, appellee here, as executor of the estate of William S. Burkhart, deceased, which decree annulled and set aside a former decree of said court rendered on June 10, 1941, in the case of Leonora Forney Burkhart v. William S. Burkhart, except in so far as said former decree dissolved the bonds of matrimony between the parties. The defendant, Fredericka Lucian, as executrix of the will and estate of Leonora Forney Burkhart, took this appeal. It appears from the pleadings and proof that William S. Burkhart died Nov. 13, 1941, and Leonora Forney Burkhart died May 21, 1943. This suit is between their respective executors.
The bill in the case now before us was filed Nov. 19, 1943, and alleges that for a long period prior to his death William S. Burkhart had been a citizen and resident of Ohio, but that *373
on January 11, 1939, his wife, Leonora Forney Burkhart, filed in the Circuit Court of Dade County, Florida, a bill for divorce against him which prayed for other relief also, a copy of which bill was attached, in which it was alleged that each of the parties was, and had been for more than ninety days, a resident of Dade County, Florida, and that the defendant was temporarily residing or in business in Cincinnati, Ohio, and residing in Burkhart's Sanatarium, Reading, Ohio, but that it was not alleged in said bill, or by sworn affidavit, that any basis existed for constructive service of process against Burkhart as a resident of Florida under the applicable statute, 4895 C.G.L. 1927, 48.04 F.S. 1941. The bill in the case now before us alleges that it was not true that William S. Burkhart was a resident of Florida, and that this was shown in the divorce case by the Master's report to whom the matter was referred in connection with the defendant Burkhart's special appearance and motion to quash service, which is referred to in
It is further alleged in the instant bill that on May 1, 1939, the defendant Burkhart, appearing specially for that purpose, filed a motion to quash the order for constructive service and to dismiss the plaintiff's petition upon the ground that the court had not acquired jurisdiction over his person, or over the subject matter of the suit, and that plaintiff had not resided in Florida for ninety days before filing her bill. The chancellor, after appointing a master to take testimony and submit a report, on September 15, 1939, overruled this motion and adjudged that it constituted a general appearance and required *374
defendant to answer by the November rule day, and taxed the Master's fee and costs, amounting in all to $414.50 against him. That on appeal to the Supreme Court, this court held that the defendant's said special appearance and motion to quash did not constitute a general appearance so as to give the trial court jurisdiction of the person of the defendant husband; that in this respect the lower court's order was reversed. That allegation is correct. See Burkhart v. Burkhart
But in the decision just cited, this court held that "as the court has jurisdiction of the parties as otherwise held by the chancellor, the decree is in other respects affirmed." The only adjudications in said order of the chancellor, entered September 15, 1939, other than that the special appearance and motion to quash amounted to a general appearance, were to confirm and approve the Master's report, which report held that the court "had jurisdiction of the parties and the subject matter;" that Mrs. Burkhart was a bona fide resident of Florida and had been for more than ninety days preceding the filing of her bill; and that the "matrimonial domicile" of the parties was in Florida, (for somewhat conflicting definitions of "matrimonial domicile" see 26 Words Phrases, 729). The order also required the defendant Burkhart to pay the Master's fee of $250.00 and the reporting of the testimony in behalf of the plaintiff, $164.50. The effect of this holding by this court, in
On November 4, 1940, upon plaintiff's praecipe, the clerk entered a decree pro confesso against the defendant Burkhart, based upon the constructive service above alluded to and defendant's failure to answer the bill as required by an order of the Circuit Court, entered September 27, 1940, requiring the defendant to file an answer on or before October 7, 1940, and also entered judgment against defendant for the costs herein above mentioned which were assessed against him in the order of September 15, 1939, in the total amount of $414.50.
The bill now before us further alleges that at no time during the progress of the cause, which ripened into a final decree under attack, was personal service of process made upon William S. Burkhart, nor was any attempt made so to do; that at no time did he appear generally or otherwise than specially, as above outlined, nor did he file any other motion or pleading or do any act to submit himself to the jurisdiction of the court. That at no time during the progress of the cause were any properties, monies or credits owned (or alleged to be owned) by the defendant, seized, impounded or sequestered, nor was any effort made to bring any such property into the jurisdiction of the court. That no writ of attachment nor writ of garnishment, legal or equitable, was ever issued for any property, money or credits of the defendant, nor was any such property described in the bill of complaint (or any other instrument) nor was any such relief asked. That notwithstanding all this, the Judge of the Circuit Court of Dade County, on June 10, 1941, entered a final decree (copy attached) by the terms of which it was ordered and decreed, in substance that: (1) the court had jurisdiction of the parties and the subject matter; (2) the decree pro confesso was confirmed; (3) report of the special master was confirmed; (4) the bonds of matrimony existing between the parties were dissolved and divorce a vinculo matrimonii was granted; (5) *376 that the defendant pay $5,000 for plaintiff's attorney's fees; (6) that he pay the defendant $375.00 per month as permanent alimony; (7) that plaintiff have and recover $31,430, balance due her for monies advanced to the defendant and $10,940 interest thereon, making a total of $42,370, for which execution was directed to issue; (8) that costs amounting to $2,965.53 be taxed against the defendant; (9) that a certain Pontiac automobile registered in the name of the defendant was the plaintiff's property; (10) that a Master's fee of $500 be paid by defendant; (11) that defendant pay $18.00 for reporting the testimony, and (12) that the question of the specific performance of a prenuptial agreement be reserved for determination on the defendant's death. These allegations of the present bill are supported by the record.
Appellee's bill alleged that said final decree of January 10, 1941, was void and of no effect because: (1) there was no personal service of process on the defendant and no voluntary appearance by him; (2) there was a total failure to secure valid constructive service on defendant as an alleged resident of Florida as required by the applicable statute; (3) that the record shows that the plaintiff was not a resident of Florida for ninety days next preceding the filing of her bill; (4) that in so far as the decree was, or purported to be one in personam, it violated both the State and Federal constitution in that it deprived the defendant of his property without due process of law; (5) that there was no seizure, attachment or garnishment of any property of the defendant so as to give the court jurisdiction to enforce a money decree against him, or a judgment in rem, and (6) there was no basis in the pleadings for the rendition of any money decree against the defendant for the items named in the decree, or in any sum, and particularly for the sum of $42,370, specified in paragraph 7 of the decree, which was not mentioned or described in the bill or any other pleading, and was wholly unconnected with the marital res, or the suit for divorce, money or counsel fees.
We might observe right here that as to this last item of $42,370, for which no predicate was laid in the pleadings, the decree of June 10, 1941, was absolutely void. The jurisdiction of the court had not been invoked as to this item; nor could it *377
have been invoked without personal service on defendant. See Lovett v. Lovett,
It is further alleged that Leonora Forney Burkhart, in her life time, and after her death her said executrix, have attempted to enforce the invalid decree, and pretended rights accruing to her thereby, in three separate actions brought against this plaintiff as executor of the estate of William S. Burkhart, in the courts of Ohio, which are still pending; that plaintiff cannot close the estate nor make any distribution of the assets until the validity vel non of the said decree of the Circuit Court of June 10, 1941, is definitely and finally decided, and that the said Ohio Courts are awaiting a final expression from the Florida courts on this question; that while the force and effect of said decree had been challenged in said Circuit Court of Dade County and in the Supreme Court of Florida and its validity questioned from the time of its entry, no direct decision thereupon has been handed down by any court of complete jurisdiction, and that plaintiff has been put to almost continual harassment and substantial expense by defendant's efforts to enforce said void decree.
The prayer is that the court enter a declaratory decree, adjudicating the decree of June 10, 1941, to be utterly void; that defendant be temporarily enjoined from attempting to enforce said decree, and that on final hearing the injunction be made permanent. Temporary injunction was granted by the court, and was made permanent in the final decree appealed from.
On November 16, 1943, the defendant executrix filed a motion to dismiss the bill on various grounds. One of them was that no grounds are shown for a declaratory decree; but as we see it, the prayer of the bill goes beyond that. It directly attacks the validity of the decree, and seeks to enjoin its enforcement. Furthermore, under the statute, every bill of complaint shall be considered to pray for general relief. Section 63.28 Fla. Stats. Annotated. Another is that the bill does not show that the plaintiff executor has any bona fide interest in the subject matter of this litigation, but another ground, somewhat contradictory, is that the plaintiff, as shown by the bill, is in privity with the original defendant and bound *378 in law by the final decree, which was not appealed from. However, aside from this, the bill shows that the estate of which plaintiff is executor is being threatened with depletion by litigation based on the money judgment contained in the decree of June 10, 1941, here attacked, and that it is plaintiff's duty to attack such decree because plaintiff is advised that it is void for want of jurisdiction. The main ground of the motion to dismiss appellee's bill, as evidenced by appellant's brief and oral argument, is that this plaintiff, as executor of the estate of William S. Burkhart, is bound by the former decisions of this court in the case of Burkhart v. Burkhart, holding, so it is alleged, that the Circuit Court of Dade County had jurisdiction of the parties and of the subject matter without personal service of process, and that the questions raised by the bill are res judicata as against Burkhart and his executor.
On November 20, 1943, the motion to dismiss was denied and the defendant executrix later tendered an answer, which was later permitted to be filed, and which denied that the decree of June 10, 1941, was entered in contravention of the constitutional rights of William S. Burkhart, and also denied several other allegations of the appellee's bill. The answer alleges that the Master did not find that Burkhart was a resident of Ohio, but that he did find that the marital domicile of the parties was in Dade County, Florida and that the court had jurisdiction of the parties and of the subject matter by virtue of the marital domicile of the parties; and that the defendant waived any defects in the order for and process of service upon him by publication by filing his special appearance and motion to quash and motion to dismiss, which motions the court denied upon the ground that the Master had adjudicated the marital domicile of the parties to be within the jurisdiction of the court. The answer admits that the chancellor adjudicated that defendant's special appearance and motions amounted to a general appearance and that the Supreme Court reversed the case in so far as it related thereto, but denies that the Supreme Court reversed the chancellor's confirmation of the Master's report which held that the trial court had jurisdiction of the parties and the subject matter by *379
reason of the "marital res" being located within the jurisdiction of the Court; citing Burkhart v. Burkhart,
The answer further alleges that when, in January, 1941, William S. Burkhart presented in the Supreme Court suggestion for writ of prohibition, he thereby waived service of personal process and submitted himself to the Courts of this State, and alleges that this Court then adjudicated that the Circuit Court had jurisdiction to enter orders in the cause. A copy of the proceedings and of this court's decision and opinion, filed March 11, 1941, is attached to the answer. See
The answer erroneously alleges that the courts of this State have adjudicated that Burkhart's residence was in Dade County, Florida, and also that it is not necessary for the courts of this State to adjudicate what effect this decree might have if sued on in a foreign state. It is also denied that the courts of the State have not directly decided upon the validity of the decree attacked; that this Supreme Court has held that the decree is not void, and that if Burkhart had any rights therein or in the properties levied upon, he should have taken an appeal therefrom. As to this last allegation, we might interpolate that Burkhart probably did not care to appeal; he might have been advised that the decree was not valid in so far as it was a money decree, that an appeal therefrom might be construed as a personal appearance, and furthermore he might not have objected to the divorce part of it, because, as this record shows, he sued for and secured a divorce in Ohio.
The answer also alleges that pending the appeal of W.S. Burkhart in the case of Burkhart v. Burkhart, and appellee's motion to dismiss the appeal,
We observe right here that this allegation misconstrues the opinion and order of this Court, dated February 13, 1940, as will be shown by the report thereof in
Finally, the answer of Mrs. Burkhart alleges that this court exercised jurisdiction over the parties and the subject matter of this litigation by its order of October 25, 1940 (not reported) which recited that "This cause coming on for consideration on the petition of counsel for appellee for temporary alimony, suit money and temporary counsel fees incurred in the court below and in this court, it is ordered that appellant be and is hereby required to pay to appellee the sum of $300.00 for her counsel fees in this court for their services in representing the appellee on this appeal in this Court; it is further ordered that all further relief prayed for in said petition be and the same is hereby denied without prejudice to proceed in regard thereto in the lower court as the parties may be advised." The certificate of the Clerk of this Court, following this order in the transcript, states that the order was entered on October 9, 1939. But regardless of the date of the order, it could only have referred to allowance of a counsel fee to appellee's counsel for representing her in this court in resisting the appeal of W.S. Burkhart from the order of the lower court holding that his special appearance and motion to quash and dismiss amounted to a general appearance. This is an appellate court. We do not consider that this order could confer any jurisdiction upon the lower court over the person or property of appellant William S. Burkhart which it did not already possess. The appeal referred to was finally disposed of by this court by its order and judgment of October 4, 1940. See
Upon petition for review by certiorari under our rule 34, to test the sufficiency of plaintiff's bill to withstand the motion to dismiss in the instant case, which motion was denied by the chancellor below, this court denied the petition, by a 4 to 3 decision, thereby indicating that the motion to dismiss the bill was properly denied. See Lucian, Executrix, v. Southern *382
Ohio Savings Bank Trust Co., as Executor,
On final hearing in this present case, the court denied plaintiff's application for a final decree on the decree pro confesso theretofore entered by the clerk, and vacated said decree pro confesso, and granted leave to the defendant executrix to file the answer tendered to the court (which answer we have alluded to above) and thereupon the defendant through her counsel announced that she had no testimony to offer in said cause except the record and proceedings in the case of Leonard Forney Burkhart v. William S. Burkhart in this court (55631) and in the Supreme Court; whereupon plaintiff renewed its motion for a final decree. (Appellant contends here that plaintiff did not prove its bill by the introduction of evidence. That was not necessary. Both plaintiff's case and defendant's defense depended upon the record in the case referred to. Its introduction by the defendant made it unnecessary for the plaintiff to introduce it. Furthermore, the trial court might be presumed to be familiar with its own records.)
The court held that the final decree of June 10, 1941, in the above mentioned case, was entered without personal service of process; that the defendant William S. Burkhart did not voluntarily appear in such cause, and no property belonging to him was seized, attached or sequestered prior to the entry of the decree so as to give the court jurisdiction in the premises, (which holdings are sustained by the record), and that therefore the court never acquired jurisdiction to enter a personal judgment against said defendant. The court adjudged said decree of June 10, 1941, to be utterly null, void and of no effect whatever, except in so far as it may have dissolved the bonds of matrimony between the parties, "which question has become moot by the death of both of them," and the defendant executrix, her agents and attorneys, were permanently enjoined and restrained from attempting to enforce said final decree in any wise, and particularly from prosecuting any suits or actions thereon in the courts of Ohio or elsewhere.
It appears from this record that, regardless of whether or *383 not William S. Burkhart was a resident of Florida, or of Ohio, he was never personally served with process, and the only service by publication which was made against him was in the form applicable to service by publication upon non-residents. Furthermore, we held, as above shown, that his special appearance and motion to quash and dismiss did not amount to a general appearance. Nor was there any seizure or attachment or sequestration of any property of the defendant Burkhart, such as would authorize a personal judgment against him, except as hereinafter discussed, prior to the entry of the decree of June 10, 1941, which the chancellor below annulled, except in so far as said decree dissolved the bonds of matrimony between the parties; the chancellor holding that the trial court, on this record, had never acquired jurisdiction to enter a personal judgment of any kind against the defendant.
Appellant contends that when Mr. Burkhart filed in this court his petition for the writ of prohibition, above referred to, he subjected himself personally to the jurisdiction of the trial court. We hold this contention to be erroneous. Speight v. Horne,
Counsel for appellee contend that the decree in the instant case is sustained by the leading case of Pennoyer v. Neff,
In my former opinion filed in this case on July 20, 1945, after stating in substance the decree here appealed from, annulling the decree of June 10, 1941, I said:
"The writer would be inclined to agree with this ruling were it not for the opinion and judgment of this court in Burkhart v. Circuit Court of Eleventh Judicial Circuit,
In stating in my former opinion that the property referred to in the prohibition proceedings had been levied on "for the *385
purpose of satisfying the decree of June 10, 1941, for alimony, attorney's fees and costs," this writer fell into egregious error. The opinion of this court in the prohibition case shows that said proceeding was brought by Burkhart to stay further action by the Circuit Court to enforce two orders: one rendered December 4, 1940, for attorney's fees, for which issuance of execution had been directed, and temporary alimony; and the other, rendered January 3, 1941, which entered judgment for such alimony then unpaid and directed the issuance of execution therefor. See
In the light of the opinion and decision in the prohibition case, above referred to, which had become "the law of the case," I am of the opinion that the decree of the chancellor, here under review, is too broad. In addition to that part of the decree of June 10, 1941, which dissolved the bonds of matrimony existing between the parties, which the chancellor in the decree now under review left standing, I am of the opinion that under our former decisions certain other portions of said final decree should not have been disturbed, towit: that part of the decree ratifying and confirming the decree pro confesso; that part of the decree confirming the special master's report; that part of the decree providing for the payment by the defendant of solicitor's fees and allowing permanent alimony (which of course meant during the life of the plaintiff); and also that part of the decree providing for the payment of a special master's fee of $500.00 and $18.00 for the expense of reporting the testimony, and the court costs is so far as they were properly taxed against the defendant. But that part of the decree awarding a judgment against the defendant Burkhart in the sum of $31,430.00 together with $10,940.00 of interest, making a total of $42,370.00, was properly held null and void in the decree here under review, for several reasons, one of them being that this judgment, to enforce the payment of an alleged debt for moneys advanced, was not within the issues made by the pleadings, and the other was that the court had never acquired personal jurisdiction of the defendant such as would authorize entry of a personal judgment based on any such claim, either under the weight of authority, or our opinion and decision in
Therefore, on this rehearing, the decree appealed from is affirmed in part and reversed in part and the cause is remanded for the entry of a decree in conformity with this opinion.
BUFORD, J., concurs.
CHAPMAN, C. J., and TERRELL, J., concurs in conclusion.