50 Fla. 581 | Fla. | 1905
(after stating the facts.) We shall discuss the propositions decided by the Circuit Court in the order in which they occur in the final decree.
I. Had the alleged homestead been abandoned by James Kellum, prior to the time of his death? We may admit for the purpose of the argument that except for an abandonment the heirs were necessary parties, without whom a decree of foreclosure as to it is an absolute nullity and subject to collateral attack in the manner sought by this bill.
On mere questions of fact, dependent upon credibility of witnesses, this court is reluctant to interfere with the finding of the Circuit Court, but happily in the matter before us the contradictions are but trivial and the question resolves itself therefore into one of law rather than of fact.
It is shown conclusively that Dr. James Kellum lived for ten years or more with his wife and children on the property, cultivating with little success a small grove, but was persuaded in 1886 to move to the town of Fort Myers where the greater population would enable him to utilize his profession, that of a practicing physician, to greater advantage; that he remained at Fort Myers continuously with his family until his death in 1890, and was there buried with his wife whose death preceded his
II. Irrespective of the homestead feature were the heirs of the dead mortgagor necessary parties to a bill to enforce the mortgage^ lien, which was commenced against the administrator of the deceased and had proceeded to a decree pro confesso and the report of a special master, prior to the going into effect of the Revised Statutes? We do not now undertake to- discuss whether the absence of such parties renders the decree void or merely voidable.
In Scott v. Jenkins, 46 Fla. 518, 35 South. Rep. 101, an appeal from a decree of foreclosure in a case that was pending June 13, 1892, when the Revised Statutes took effect, but wherein it appeared that after this date the mortgagor died and the cause was revived in the name of her administrator alone, we considered the changes in the law made by the Revision and reversed the cause because the heirs of thé mortgagor who alone upon the showing made properly represented the realty, were not before the court, and further held that the mere pendency of the suit made no difference. There it was clear that whatever rights and representative capacity the administrator possessed were controlled by the law in effect at the time of his appointment and had no relation back to the time of the filing of the original bill. Prior to the Revised Statutes it was the settled law of this State that as the posession of the realty, not the homestead, was cast immediately upon the administrator, as unconditional assets in his hands for administration he alone could represent the estate of the intestate in all kinds of actions affecting the realty. The change was wrought by the Revisers in casting the possession immediately upon the heirs and to be taken by the administra
III. The failure to record the decree duly passed and signed by the judge and filed by the clerk, does not render subject to collateral attack a sale thereunder formerly confirmed by the court.
The judgment and decrees of a court of general jurisdiction as to subject matter and undoubted jurisdiction over the person are not to be set aside for failure to observe the provision of a statute, however salutary, that looks not to jurisdiction but to orderly safe procedure and the performance of which rests upon some non-judicial officer. Our statutory provision (Rev. Stats. of 1892, Sec. 1448) that “no process shall be issued or other proceeding had on any final decree or order until the same shall be signed and recorded,” contains no penalty for failure to observe it. This statute was applied and enforced on an appeal taken directly from an order for a writ of assistance against the specific objection that the
Some minor objections were made to the original proceedings, but these were not passed upon by the Circuit Court, nor do we feel that they are worthy of discussion by us. Let it suffice to say that there is no merit in them.
There has been no substaixtial change in the status of the parties since the decree of June 15, 1892, and for the better security of the record thereof it is deemed advisable that said decree be now recorded. It is therefore ordered and adjudged that the decree appealed from be reversed with directions to dismiss the bill at complainant’s costs upon proof that the decree of June 15, 1892, has been recorded upon the minutes of the Circuit Court of Lee county.