68 Fla. 372 | Fla. | 1914
On December 4, 1913, Robert J. Edwards filed a bill in equity against Myakka Company, a corporation under the laws of South Carolina, and Junius Beebe, in which it is alleged that Edwards is the owner in'
Therefore your orator prays that by a decree of this Honorable Court, the title of your orator may be quieted as against said defendants, each and both of them, so far as said real estate of your orator may be concerned; that said defendants be declared possessed of no title to, interest in, or claim upon said lands, and that the same may be decreed to belong absolutely to your orator.
And your orator prays for such other and further relief in the premises as equity may require and as to your Honor may seem meet. Also that said defendants may be required to answer this bill and to stand to and abide by all orders and decrees which may be entered herein.”
The defendant Myakka Company filed the following plea: “That this defendant heretofore, to-wit, on the 4th day of January, A. D. 1906, filed in the Circuit Court of
All of which matters and things this defendant doth aver and plead in bar of the entire bill of complaint of the complainant, and prays judgment of this Honorable Court whether it should make any further or other answer to the said bill of complaint.”
On this plea the following order was made: “This cause coming on to be heard upon the argument of the plea of the defendant to the bill of complaint filed herein, it being stipulated by counsel for the respective parties that the plea correctly states the facts in reference to the service of process in the former chancery suit, and should be considered with the same force it would have in case a transcript of the record of the former cause were attached thereto, the former record not being found at the present time, upon consideration thereof, the court being of the opinion that the publication of process in the former suit was insufficient, and that no jurisdiction was acquired thereby to render a decree binding Robert J. Ed
The defendant Myakka Company appealed and assigns error as follows:
“1. The court erred in and by the decree appealed .from in holdin-g and deciding that jurisdiction was not obtained of Robert J. Edwards to render a decree binding on him in the suit mentioned in the plea of this defendant.
2. The court erred in holding and deciding that the decree in the former suit mentioned in the plea of this, defendant could be collaterally attacked in this proceeding on the ground of the alleged insufficiency of service of publication in the said suit.”
The statute under which the asserted' constructive service was made is as follows:
“CHAPTER 4129 — (No. 15).
AN ACT to Provide for the Service of Non-Resident Defendants and Others in Chancery Causes, being an Act to Amend Section 1413 of the Revised Statutes. ■
Be It Enacted by the Legislature of the State of Florida:
Section 1. That Section 1413 of the Revised Statutes
1413. ■ Constructive Service.
1. Obtaining order for publication. Whenever the complainant or his agent or attorney ¡shall state in a sworn bill or affidavit, duly filed, the belief of the affiant that the defendant is a resident of a State or county other than this State; specifying as particularly as may be known to affiant, such residence, or that his residence is unknown, or that, if a resident, he has been absent more than sixty days next preceding the application for the order of publication, and that there is no person in the State the service of a subpoena upon whom would bind such defendant, or that he conceals himself so that the process cannot be served upon him, and further states the belief of the affiant as to- the age of the defendant being over, or under, twenty-one years, or that his age is unknown, the- judge or clerk of the court in which such bill shall have been filed shall make an order against the defendant requiring him to appear to the bill upon a day to be fixed by the order, not less than thirty nor more than fifty days from the time of the making of the order, if he be stated therein to be a resident of the United States; and not less than fifty nor more than eighty days if he be stated to be a non-resident of the United States, or if his residence be stated as unknown.
2. Publication of order.- — -The clerk shall have all orders of publication against an absent defendant, whether made by the judge or himself, published with as little delay as may be, in such newspaper as may be designated in the order, once each week, for four consecutive weeks, if the defendant be stated to be a resident of the United Stats, and once each week for eight consecutive weeks, if
Sec. 2. This Act shall take effect immediately upon its approval by the Governor.
Approved May 31, 1893.”
To accomplish the purpose designed by this statute it should be so construed and applied as to afford due process of law and effectually protect individual rights of non-residents who are not only permitted but encouraged to acquire property in this State, as well as to give ample remedy to those having rights in the property of non-residents situated in this State.
The question to be determined is whether the publication of constructive service, as stated in the above plea, gives the court jurisdiction of Edwards, who was a defendant in the former suit involving the property in controversy here. The publication here considered was to make constructive service of initial process- to acquire jurisdiction of a non-resident defendant in a suit in equity —not as notice of proceedings in a cause where jurisdiction of the defendant has been duly acquired, or as notice of legislative proceedings as in Ex parte Lower, 178 Ala. 87, 59 South. Rep. 611.
The above quoted statute contemplates that when the defendant is a resident of the United States, as in this case, the publication shall begin four weeks before the appearance day. . The manifest purpose of the provision requiring the appearance day to be fixed by the order, and, in .a case like this, that such appearance day be not less than
The requirement here that the publication shall be “once each week, for four consecutive weeks,” is not complied with when the publication is made once in each week, where the beginning of the publication period or the first publication is less than four weeks or twenty eight days from the appearance day to which the publication has reference. See Knowles v. Sumney, 52 Miss. 377: Morse v. United States, 29 App. Cas. (D. C.) 433; Early v. Doe, 16 How. (U. S.) 610; State v. Cherry County, 58 Neb. 734, 79 N. W. Rep. 825.
The statute also provides that the appearance day of the defendant shall be fixed by the order to be “not less than fifty nor more than eighty days if he be stated to be a non-resident of the United States, or if his residence be stated as unknown,” and that the publication shall be
Where the publication is required to be “once each week for eight successive weeks,” such publication cannot be fully made when the appearance day is less than eight weeks from the date of the order. The statute permits the appearance day to be fixed “not less than fifty nor more than eighty days” from the date of the order. In applying the statute any real or apparent conflict in it when the defendant is a non-resident of the United States or his residence is unknown, may be avoided by making the appearance in such cases not less than eight weeks but not more than eighty days from the date of the order. This practice is doubtless pursued for convenience if not to make the statute serve the purpose for which it was enacted.
The order of the judge in the former case, that due and legal service had been made by publication, is not effectual when contradicted' by the facts shown.
If the court does not acquire jurisdiction of the defend ant sought to be brought in by constructive service where there is not a substantial compliance with the requirements of the statute, both as to the publication and as to fixing the appearance day; and where jurisdiction of the defendant has not been acquired, a default cannot be lawfully entered against him for failure to respond to the bill of complaint by plea, answer or demurrer, as required by the statute and rules of court. Nor wil-1 a decree rendered, where jurisdiction of the defendant has not been acquired by proper actual or constructive service or appearance, be
In Laflin v. Gato, 52 Fla. 529, 42 South. Rep. 387, it was held that where the order for publication fixes the appearance day more than fifty days from the making of the order, when the defendant is a resident of the United States, the constructive service is- ineffectual. For stronger reasons, where the defendant is a resident of the United States a publication for a period beginning less than four weeks from the designated appearance day, is ineffectual to give the court jurisdiction of the defendant for the purpose of adjudicating his rights in property within the jurisdiction of the court.
The order appealed from is affirmed.