126 Fla. 595 | Fla. | 1936
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *597 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *598 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *599 This is an appeal from a final decree of the Circuit Court of Broward County, which dismissed an amended bill, brought within six months after the rendition of a tax lien foreclosure decree, seeking to review and have set aside said foreclosure decree for error apparent on the record, and also to impeach the foreclosure decree for fraud in its procurement.
A bill of review, or a bill strictly in the nature of a bill of review, cannot be filed without first obtaining the permission of the Court. In so far as the bill in this case sought a review of the foreclosure decree for alleged error apparent on the record, the above rule would apply. An original bill to impeach a former decree for extrinsic fraud in its procurement is an independent bill and can be filed without first obtaining the permission of the Court. Gamble v. Gamble Holding Corporation,
In so far as the amended bill may be considered as a bill brought for the purpose of impeaching the foreclosure decree on the ground of fraud in its procurement, its allegations of specific facts are hardly sufficient to sustain the general allegations of actual as distinguished from constructive fraud. The specific facts as alleged go to show that if the plaintiff in the foreclosure suit had exercised a reasonable degree of diligence in making inquiries, it would not have been able to find that the defendant in that suit, the plaintiff here, had a complete set of officers and an office for the transaction of business located in the City of Miami in the adjoining County of Dade, as shown by annual reports on file with the Secretary of State, made under Chapter 14677, Laws of 1931.
In support of this contention, it is alleged that plaintiff in the foreclosure suit only applied to the Secretary of State to ascertain whether or not the defendant corporation had *601 complied with Sections 4257 and 4259 of Comp. Gen. Laws (requiring corporations to designate an office or place of business, or agent for the service of process), to which inquiry the reply was in the negative, and a certificate in due form made by the Secretary of State to that effect, was filed in the cause, whereas if the plaintiff in foreclosure suit had asked the Secretary of State to furnish it the names of the officers of the defendant corporation it could have obtained them, as this information was on file in the Secretary of State's office, as above set forth, by reason of reports filed under said Chapter 14677, which requires corporations to file annual reports and pay annual stock taxes, which annual reports shall give the names and addresses of their officers and of their resident agent upon whom process may be served.
The Sheriff's return, made under Section 4256 C.G.L. was to the effect that the officers and agents of the defendant corporation were "unknown." This has been held sufficient under that section to form a basis for constructive service. Fowler v. Chillingworth,
Section 4261 C.G.L., being Section 5 of Chapter 11892 of the Acts of 1927, provides inter alia that where a corporation has failed to comply with certain requirements of Section 4257 or of Section 4259, and there shall be filed in any pending cause a certificate of the Secretary of State that the place of business or domicile of said corporation, or agent upon whom process may be served, has not been designated under either of said sections, the clerk of the court, if the court has a clerk, and if not, the judge thereof, shall make an order of publication as therein prescribed. In this case, the complainant in the foreclosure proceeding complied with the statute by filing a certificate of the Secretary of State, which I think meets the requirements of the statute, and the Circuit Judge himself made the order of publication. The certificate and order of publication were bothfiled on the same day. The Judge's order was dated the day before the date of filing, but I think the presumption should be indulged, in favor of the validity of the court's order, that the certificate had been filed with or presented to the Judge on or before the signing of the order of publication, as both the certificate and order were filed in the clerk's office on the next day after the order was signed.
It is also contended by appellant that the Circuit Judge had no authority under the statute to make the order, as his court has a clerk. But surely the Judge of a court of general jurisdiction has the power to make an order which the clerk, a ministerial officer, has the power to make.
However, these procedural questions were raised by the motion which the appellant filed in the original suit, and *603 were decided adversely to appellant, and are now res judicata.
Indeed, said motion, in general terms, charged both the complainant in foreclosure and the sheriff with lack of due diligence in that complainant failed to make sufficient inquiry before resorting to substituted service, and in that the sheriff likewise failed so to do before making his return on the summons that the officers of the appellant corporation were unknown. The motion referred to covered in brief form most of the grounds set out in the bill to impeach the decree, though the latter goes into more detail on some points, and adds some new allegations, and charges that such alleged lack of due diligence amounted to, or was the result of, fraud.
As the statute of 1927 (Sec. 4257, et seq., C.G.L.) authorizes service by publication upon corporations which have not complied therewith, and as the certificate of the Secretary of State filed in court under Section 4261 C.G.L. showed that the appellant corporation had not so complied, appellee was, by the express language of the statute, at least prima facie entitled to obtain constructive service by publication upon appellant as therein provided, without making inquiry for information filed under Chapter 14677, and, publication having been made in accordance with said statute (See 4261 C.G.L.), appellee was also primafacie entitled under the language of the statute to the decreepro confesso which followed. See Section 4262 C.G.L.
While the statute of 1927, under which constructive service was obtained, says nothing on the subject, we are nevertheless satisfied that no person or corporation is entitled to resort to that statute to obtain substituted service upon a corporation which has not complied with the statute, when he knows, or in the exercise of reasonable diligence could *604 have known, that personal service upon such defendant could be obtained. Any other construction would render the statute unconstitutional. Service by publication by one party upon another should never be resorted to in any case where by the exercise of reasonable diligence actual personal service can readily be secured.
In McDaniel v. McElvy,
"While allegations of a categorical nature which follow the words of the statute are sufficient as a predicate for the issuance of the order of publication, the chancellor is not thereby precluded from requiring appropriate proof of those allegations, as of any other allegations, as a prerequisite to the entry of a decree. What and how much evidence the court shall require to satisfy it upon the question of due diligence in these matters rests largely with the court granting the order. Extraordinary steps to ascertain the whereabouts of the party are not required. But judgments which exclude persons from any interest in or lien upon land should not be rendered without actual notice, when by the exercise of reasonable diligence actual notice can be given. Reasonable diligence in such matters is an honest effort, and one appropriate to the circumstances, to ascertain whether actual notice may be given, and, if so, to give it. Such effort, however, need not embrace a search in remote parts of the State (Jacob v. Roberts,
"From these cases, and others to like effect, we conclude that in suits of this nature, where personal service cannot be effected after the exercise of reasonable diligence and an *605 honest and conscientious effort to do so, appropriate to the circumstances, a reasonable method of imparting notice by publication which affords the defendant reasonable opportunity to receive the notice and present his defense, having reference to the character of the suit, and the probable place of residence of the defendant, is due process of law, provided the requirements of the statute be strictly followed."
See also Minick v. Minick,
It is also alleged that at the time the foreclosure suit was begun, there was conspicuously placed on the front of the dwelling on said lot, a sign, which in bold and legible lettering recited that the premises were for sale, and gave as the name of the agent for the owner thereof Investment Management Corp., 139 N.E. First Street, Miami, Florida. That if inquiry had been made at the office of said agent corporation, so named on the sign, appellee could have ascertained that the directing officer of said corporation was also an officer of appellant, Smetal Corporation, the owner of the property, and that said agent's address was likewise the office address of the owner corporation. This allegation in the opinion of the majority of the Court was sufficient of itself to authorize the vacation of the prior decree on the ground that resort to constructive service was not justified, because of neglect to make due and reasonable inquiry.
It is further alleged that the order of publication was published in a paper published at Pompano, which, among the newspapers published in the county, was a relatively *606 obscure one, and which could have been selected for no other purpose than to further the intent of the plaintiff in the foreclosure proceeding that the pending of the suit should not come to the attention of Smetal Corporation.
To sustain the sufficiency of a bill to impeach a decree on the ground that it was procured by actual fraud, the allegations of fact must be of a clear, unequivocal and convincing character. Indeed, this rule applies whenever fraud is made the basis of relief prayed or defense set up. But in so far as the bill was based on a constructive fraud, that is failure on appellee's part to use reasonable diligence to ascertain the officers or agents of the corporation and their whereabouts before resorting to constructive service by publication, especially in failing to make the inquiry indicated by the sign on the house, the bill had equity. In this case most of the allegations, except this one, based on lack of proper inquiry and errors in procedure in the foreclosure case, had really been foreclosed by appellant's motion, which was filed in the original suit in the court below, and appellant's failure to appeal from the adverse ruling thereon, but the one allegation above referred to, when considered in all its connections, was enough to call for vacation of the prior decree.
I am authorized to say that Mr. Chief Justice WHITFIELD concurs in the views hereinabove expressed.
The views of Mr. Presiding Justice ELLIS are expressed in his separate opinion, which is concurred in by Mr. Justice TERRELL.
The result is that a majority of the Court are of the opinion that in view of the particular facts of this case, as made by the allegations of the bill, the bill had equity, and that the order dismissing the same for want of equity was erroneous. *607
Reversed and remanded.
WHITFIELD, C.J., and ELLIS and TERRELL, J.J., concur.
BUFORD and DAVIS, J.J., dissent.
Concurrence Opinion
West Lake Investment Company, a corporation, obtained a final decree in the Circuit Court for Broward County against Smetal Corporation, a Florida corporation, on February 8, 1934, in a suit by the West Lake Company to "foreclose a tax deed" which had been issued to it for a certain lot in Hollywood Lakes Section in Broward County. The lot, prior to the issuing of the tax deed, was the property of the Smetal Corporation.
The decree was for the sum of $489.31, and costs. The order of sale was published for three weeks and on March 6, 1934, the Special Master reported that the land had been sold to the West Lake Company for the sum of $650.00. On the same day an order was made confirming the sale and Master's deed was executed to the West Lake Company. So at the conclusion of that procedure the West Lake Company had both a tax deed and a Master-in-chancery's deed based upon the tax deed to the lot in Broward County.
On May 3, 1934, two months and twenty-five days after the final decree, the Smetal Company exhibited its bill in the Circuit Court for Broward County against the West Lake Company to invalidate the orders and decrees of the Circuit Court in the tax deed foreclosure suit. The grounds urged were that the court was without jurisdiction to enter the orders and decrees, and that the proceedings adopted by the complainant West Lake Company in that case constituted a fraud upon the court and the Smetal Company.
The bill of complaint is a prolix document of many unnecessary but nevertheless related allegations of fact. The substance of them is that the Smetal Company is a Florida *608 corporation with its principal office and place of business in Miami, Dade County, Florida; that no service of process in the tax deed foreclosure suit was made on it; that the orders and decrees in the case rested upon an unauthorized substituted service of process by publication; that the Smetal Company had no notice of the suit and knew nothing of the proceedings until after the execution of the Master's deed when the same was exhibited to the Smetal Company's tenant who was in possession of the land and who was requested by the West Lake Company to vacate and surrender possession to it; that the requirements of Chapter 11829, Laws of 1927, Section 4261 C.G.L. 1927, were not observed in obtaining the order for substituted service of process upon the Smetal Company in the following particulars: (a) no certificate of the Secretary of State was filed at the time when the order of publication was made; (b) that the order was made by the Judge instead of by the Clerk of the Court; (c) no other statute than the one mentioned exists in the State under which service of process by publication could be obtained upon the Smetal Company; that the failure to obtain service of process upon it was due to the failure of the West Lake Company to make "a reasonable, conscientious or honest attempt" to obtain personal service upon the Corporation through its officers; that information sufficient to advise the West Lake Company of the names and addresses of the officers or agents of the Smetal Company upon whom service of process could have been made to bind the Corporation could have been easily obtained; that a sign was at the time of the commencement of the suit located conspicuously on the lot on which a two-story dwelling was built which sign in bold and legible letters advised all persons that the property was for sale by the owners and gave the name of the agent and its address *609 in the City of Miami; that such address was also the office address of the Smetal Company and that of the vice-president, who was active in the management of the Company's business affairs; that the president of the Corporation also resided in Miami and had an office at the same address, and that the vice-president was the resident agent of the Corporation and appointed for the purpose of accepting service of process upon the Company.
Other allegations were made which tended to show that the West Lake Company by its agents pursued the course it did relying upon a strict technical failure of the Smetal Company to comply with the requirements of Chapter 11829, supra, in order to gain the advantage which obtaining a decree of foreclosure upon the tax deed without notice to the Smetal Company would bring by enabling the West Lake Company to secure a valuable property worth about twenty-six hundred dollars for the sum of about six hundred dollars; that such course was pursued with intention to defraud the Smetal Company, obtain the decree by fraud in not revealing to the court the knowledge which the West Lake Company had of the Smetal Company, its place of business, officers and agents and persons residing in Florida upon whom service of process would bind the Company; that the West Lake Company's request of the Secretary of State for the certificate required under Chapter 11829, supra, was so framed as to direct that officer's attention only to the provisions of said Chapter 11829 and to certify that the Smetal Company had not under the provisions of that chapter designated an agent or officer upon whom service of process in this State might be made to bind the Smetal Company and they had deliberately ignored the provisions of a later statute, Chapter 14677, Laws of 1931, which required all corporations to file with the Secretary of State *610 on July 1st of each year the names of its officers and their post office addresses, the home office of the corporation, and the "name and address of the resident agent upon whom service of process may be made" with which Act the Smetal Corporation had complied.
Many other allegations evidentiary of the alleged deliberate purpose of the West Lake Company to obtain the decree of foreclosure by fraud and deceit perpetrated both upon the court and Smetal Company were made which it is unnecessary here to repeat.
The West Lake Company in May, 1934, interposed its answer in which it incorporated a motion to dismiss the bill. On May 31, 1934, Smetal Corporation filed its amended bill in which it amplified with great particularity the substance of the allegations contained in the original bill. A motion to dismiss the amended bill was granted by the chancellor from which order Smetal Corporation appealed.
I think the order should be reversed not only because the West Lake Company did not strictly follow the procedure prescribed by Chapter 11829, supra, to obtain a valid order of publication of service, but also because the Corporation complainant in the foreclosure proceedings did not maintain clean hands in the matter of substituting publication of service for personal service of the summons in chancery upon the Smetal Company. In other words, according to the allegations of the amended bill admitted by the motion to dismiss the complainant pursued a devious and deceptive course in order to defeat the right of the Smetal Company to be brought into court by the orderly process of a writ duly served upon it, whereby its day in court would be certainly secured, and because the court was without jurisdiction to enter the orders and decrees because it had not acquired jurisdiction of the Smetal Company. *611
Notice to a party whose rights are to be affected by judicial proceedings is an essential element of due process of law. Riverside Dan River Cotton Mills v. Menefee,
That doctrine is too firmly embedded in American and English jurisprudence to require citation of authority. The same doctrine applies to corporations. 14 a C.J. 800; Sharman v. Bayshore Inv. Co.,
The complainant in the tax deed foreclosure proceeding relied upon the terms of Chapter 11829, supra, to substitute service of process by publication for the actual notice of the pendency of the action to which the Smetal Corporation would be entitled had it complied with the statutory requirements as to the designation of a person upon whom process may be served. It is undoubtedly true that domestic corporations may be subject to reasonable rules and regulations in that regard, yet they should not be deprived of their property without due process of law. Statutes such as Chapter 11829, supra, are intended to substitute service of process by publication when no officer or agent of the corporation can be found in the State upon whom personal service of the process may be made to bind the corporation. Bernhardt v. Brown,
The statute, Chapter 11829, supra, virtually authorizes suit against a domestic corporation without service of process where the corporation fails to file its list of officers *612
or names of agents upon whom service of process may be made, which is but another name for forfeiture or confiscation of the corporation's property. The constitutional guaranty that no State shall deprive any person of life, liberty or property without due process of law, U.S. Const. Amend., Art. XIV, Sec. 1, was intended to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private rights and distributive justice. See United States v. Cox, 18 How.
Mr. Justice FIELD said that "`due process of law'" means due process "which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought." See Hagar v. Reclamation Dist. No. 108,
So in line with such conception of the fundamental law of due process this Court has held that constructive service statutes must be strictly complied with before the Court can acquire jurisdiction through it over the defendant who by such method is directed to appear; that if personal service could be effected by the exercise of reasonable diligence substituted service is unauthorized. The plaintiff should employ reasonably the knowledge at his command; should exert an honest and conscientious effort to acquire information necessary to enable him to effect personal service. See West 132 Ft., et al., v. City of Orlando,
It would seem to follow therefore in the light of the law's carefully chartered course to protect a person against the deprivation of his property without due process of law, that is to say, without affording him an opportunity to be heard respecting the judgment to be entered that one who relies upon a statute which substitutes service by publication for personal or actual service of the process upon the defendant, should follow the strict letter of the statute in order that its enlivening spirit should also be observed.
The complainant did not do that in this case. When the order of publication was made there had not been filed in the cause a certificate of the Secretary of State that the place of business or domicile of the Corporation had not been designated under either Sections 1 or 3 of the Act, Chapter 11829, supra, but a certificate was filed after the order was made that the Corporation had not filed in the office a certificate in "`compliance with either Section 4257 or 4259 of the Compiled General Laws of the State of Florida, 1927, relative to designating an office or place of business or domicile for the service of process and naming an agent to accept service.'" That was not equivalent to a statement that the "place of business or domicile of said Corporation has not been designated either under Section 1 or Section 3 of the Act. The certificate was merely the Secretary's conception of what constituted a compliance by the Corporation with the terms of the Act.
What the statute required was a certificate that the "place of business or domicile of the Corporation has not been designated." A definite, certain and unqualified statement of a fact, not the Secretary's conception of what constituted a *614 failure to comply with the law. Again, the order of publication was made by the Judge of the Court, although there was a Clerk. The statute requires the Clerk of the Court in which the cause shall be pending to make the order against the Corporation, and if there should be no Clerk, that is, if the Court have no Clerk, then the Judge shall make the order.
We have nothing to do with the reason of the statute, which required the Clerk to make the order and if there should be no Clerk, then the Judge should make it. It is sufficient that the Legislature required it, and as that drastic remedy was sought against the corporation which could have been served with process, which had designated a place of business, names of officers and agent upon whom process might be served, and that information was on file in the office of Secretary of State filed under the provisions of a later Act, Chapter 14677, Acts of 1931,supra, the strict letter of the statute, Chapter 11829, supra, should in the spirit of the Act and justness of the judgment sought, have been followed.
In addition to all of this, according to the allegations of the bill, the complainant West Lake Company knew that the Smetal Corporation was a domestic Corporation; that its principal place of business was in Miami; the names of its officers and places of address of both the Corporation and its officers and the name of the person which the Corporation had designated to accept service or could have acquired with very little effort such information. It sought rather to invoke a technical penalty against the Smetal Corporation and jeopardize its constitutional right to due process, to the end that the complainant by concealing the information which it possessed, or could have easily obtained, further its financial interests at the cost of the defendant. *615
So I am of the opinion that the order dismissing the bill should be reversed.
TERRELL, J., concurs.
Dissenting Opinion
It is conceded that Chapter 11829, Acts of 1927, if a constitutional law of this State as it must be conceded to be absent a conviction to the contrary beyond a reasonable doubt, authorizes service by publication under Section 5 of the Act whenever the corporation has defaulted in compliance with that Act by failing and refusing to designate an agent upon whom direct service of a summons may be made.
That statute has been in effect for practically nine years and many thousands of suits have been brought and prosecuted to judgment or decree under it. In passing it, the Legislature recognized the urgent need for such a law as the result of the collapse of the real estate boom which left in its wake literally thousands of domestic corporations whose location and personality consisted of little more than a corporate name. Such corporations had executed mortgages by the score which required foreclosing and to enable legal proceedings to be instituted and carried on against such corporation, the statute was prepared and passed largely at the instance of one of the leading local Bar Associations that caused it to be prepared and submitted to the Legislature as a matter of almost absolute necessity in order to enable the Courts to function against the myriad of ubiquitous corporate mortgagors whose place of business was never more substantially evidenced than by the hotel room number of the "fly by night" promoters who obtained charters for such corporations.
To now fritter away the substance of the statute by a construction which completely frustrates its purpose and intent, and casts doubts and suspicions upon the supposed *616 validity of thousands of court decrees and judgments rendered on the same basis as the one here attacked, is in my humble opinion unwarranted, and I therefore respectfully dissent from the opinion of Mr. Justice ELLIS in so far as his opinion deals with and construes Chapter 11829, Acts of 1927, as requiring service of process to be made on domestic corporations other than in literal and exact compliance with the language of the Act itself, which being constitutional, is adequate authority for the institution and conduct of legal proceedings in accordance with its precise terms, and the service of legal process by publication in its compliance with what the Act requires of it in order to be entitled to service in a different manner.
BUFORD, J., concurs.
Dissenting Opinion
I adhere to my opinion previously filed in this cause dissenting to reversal of the decree appealed from. The opinion of Mr. Justice BROWN in effect overrules our decision in Clearwater Mercantile Co. *635
v. Roberts,
Dissenting Opinion
I concur in what is said by Mr. Justice DAVIS, but I also am quite confident that the Legislature may legally provide that service of process may be had on any corporation becoming authorized to do business in Florida by delivery of copy of such process to a designated State or County official and in such event a corporation qualifying to do business in this State, either by being organized here or by complying with the statutes applying to foreign corporations, would thereby irrevocably accept the terms of the process statute and would be bound by service so made.
The statute here involved provides for just such service of process and provides a definite method by which the corporation may by certain affirmative action place itself in position to have service made on one of its own selection. *636
Smetal Corporation failed to avail itself of the convenience provided and if the statute is valid (which it is defintely held to be) the service was valid.
Addendum
Upon the original hearing of the appeal in this case, a majority of the Court were of the opinion that the decree appealed from dismissing appellant's bill, should be reversed because the bill so dismissed had equity, in that it showed that the appellee, West Lake Investment Co., had resorted to constructive service by publication against the defendant in the foreclosure suit, a Florida corporation, under Sections 4257-4261, Comp. Gen. Laws (Sections 1 to 5 of Chapter 11829, Acts of 1927), whereas under the facts alleged in said bill, by the exercise of reasonable diligence it could readily have obtained personal service upon said Smetal Corporation in the manner contemplated by the statute providing for the service of process upon corporations by personally serving the same upon their officers or agents. (Section 4251 C.G.L.)
Mr. Chief Justice WHITFIELD and the writer were of the opinion that the sign upon the premises, as alleged in the *617 bill, was alone sufficient, in connection with other facts therein alleged, to show that the plaintiff in the foreclosure suit could readily have ascertained the information necessary to have enabled it to perfect personal service upon the officers of the defendant corporation, while Mr. Presiding Justice ELLIS, and Mr. Justice TERRELL held that there were a number of other circumstances alleged in the bill which tended to show that "the West Lake Investment Company, by its agents pursued the course it did, relying upon a strict technical failure of the Smetal Company to comply with Chapter 11829, supra, in order to gain the advantage which obtaining a decree of foreclosure upon the tax deed without notice to the Smetal Company would bring by enabling the West Lake Company to secure a valuable property worth about $2,600.00 for the sum of $600.00; that such course was pursued with intention to defraud the Smetal Company, obtain the decree by fraud in not revealing to the court the knowledge which the West Lake Company had of the Smetal Company, its place of business, officers and agents, persons residing in Florida, upon whom service of process would bind the Company"; and pointing out some of the facts and circumstances alleged in appellant's bill which they deemed sufficient to justify these conclusions.
All four of the Justices who held that the decree appealed from should be reversed were of the opinion that under the well settled construction of the due process clauses of both the Federal and State Constitutions constructive service by publication could not be resorted to by the exercise of reasonable diligence actual personal service of process could readily be secured, and that it was not the intention of the Legislature that Chapter 11829 of the Acts of 1927 should be so construed as to deny to corporations the benefit of *618 this constitutional right; that to construe the statute otherwise would render it unconstitutional.
Justices ELLIS and TERRELL were also of the opinion that under the generally recognized rule that constructive service statutes must be strictly complied with, the service on the Smetal Company was also fatally defective because the requirements of Chapter 11829 were not observed in that, according to the record, (a) no certificate of the Secretary of State had been filed when the order of publication was made; (b) that the order was made by the judge instead of the clerk of the court, and (c) no other statute than the one mentioned existed in the State under which service by publication could have been obtained against the Smetal Company.
In the dissenting opinion of Mr. Justice DAVIS, concurred in by Mr. Justice BUFORD, it was held that the statute of 1927 was adopted by the Legislature shortly after the collapse of the real estate boom in order to enable the courts to function "against the myriad of ubiquitous corporate mortgagors whose place of business was never more substantially evidenced than by the hotel room number of the `fly-by-night' promoters who obtained charters for such corporation"; that to so construe the statute as to cast doubt upon the supposed validity of thousands of court decrees founded, like the foreclosure decree here in question, upon constructive service as provided for by this statute, would be unwarranted, the statute being constitutional; that to so construe the statute as to require service to be made on domestic corporations other than in literal and exact compliance with the language of the Act itself would not be justified where as here the corporation has defaulted in its compliance with what the Act requires of it in order to be entitled to service in a different manner. *619
The grounds of the petition for rehearing filed by appellees not only incorporate the points made in the dissenting opinion of Mr. Justice DAVIS, but also contends that the Court overlooked the fact that service of process was validly obtained under Section 4256 C.G.L., thus rendering the purported defects of service under Section 4261 C.G.L. wholly immaterial; and that as service under Section 4256 and the return thereon was wholly within the control of the Sheriff, no fraud or lack of diligence could be imputed to the plaintiff; and that the bill did not attempt to impeach the bona fides or validity of the sheriff's return.
The petition also contends that the lower court must be presumed to have gone into and adjudicated the question of due diligence at the time of entering the order of publication, and that this was not denied by the bill.
It is also contended that it was not alleged in the bill that Hulda M. Elsasser and her husband had any knowledge of any alleged fraud or defects in the service of process, and must therefore be presumed to have been innocent purchasers for value from the West Lake Investment Co., and entitled to rely upon the record of said cause as it existed at the time of their purchase, inasmuch as the service was valid upon its face and is now attacked solely upon matters de hors the record.
Taking up this last contention first, there is no allegation in the bill that Mrs. Elsasser or her husband paid any valuable consideration for the deed made to them by the West Lake Investment Co. The bill merely alleges that on March 8th, 1934, which was three days after the Master's sale and two days after the Master's deed to the West Lake Company was executed, the West Lake Company "executed and delivered a deed to said premises to the defendant, Hulda M. Elsasser," which deed was recorded that same day. *620 The bill also shows that at that time the premises were in the actual possession of the Smetal Corporation through its tenant, who had rented the property from the Smetal Company and moved into it several days prior to the making of said deed, and that the Smetal Company's first knowledge of the attempt to foreclose on its property was when its tenant in possession notified said Company that Mrs. Elsasser had demanded possession of the property and that he, the tenant, had later been ordered to show cause before the Court why a writ of assistance should not issue to divest him of his possession.
The petition for rehearing impliedly admits that Mrs. Elsasser was chargeable with notice of any lack of jurisdiction of the parties or subject matter apparent on the face of the record of the cause. (See 35 C.J. 82.) An inspection of the record would have disclosed to her that the certificate of the Secretary of State had not been filed, as required by Sec. 4261 C.G.L., when the order of publication was made; which, in the opinion of a majority of the Court, was sufficient to show, on the face of the record, that the order of publication was illegally issued. The rule of caveat emptor applies in its utmost vigor and strictness to those claiming under judicial sales. See opinion by Mr. Justice BUFORD in Lindsley v. Phare,
As to the contention that the Court will be presumed to have gone into the matter of due diligence before issuing the order of publication, and that it was not denied by the bill to vacate the decree that the Court had done so, this presumption would not be any answer to those allegations of the bill which show a failure to comply with the conditions precedent expressly prescribed by the statute which must be complied with before an order of publication can *621
be legally granted. Nor would such presumption prevent the defendant from showing the true facts, where, as here, the record is silent on the question of due diligence and there is nothing to indicate that the trial court considered the matter. The presumption alluded to, where the record is silent, is at most aprima facie presumption and not a conclusive one in cases of direct as distiguished from collateral attack, especially when promptly brought, as was done in this case. Furthermore, in so far as the publication was attempted to be made under the 1927 Act, that statute (Sec. 4261 C.G.L.) provides that the clerk
shall make the order of publication, and as the clerk cannot exercise judicial power, but can only act ministerially, the basis for the presumption of a judicial determination of the question of due diligence before service by publication was accorded, under this particular statute, does not exist. The fact that the judge acted in place of the clerk in making the order here involved, if indeed he could lawfully so act, would not aid appellee in this connection, because the statute imposes the duty on the clerk, in courts having a clerk, and thus fixes the character of the act as a ministerial one. People v. Bush,
Now, as to the claim that service was validly obtained under Section 4256 C.G.L., thus rendering the purported defects of service under Section 4261 C.G.L. immaterial, it will be noted that said Section 4256 provides that when process against a corporation cannot be served "owing to the failure of such domestic or foreign corporation to elect officers or appoint agents, or the failure of such foreign corporations to have within the State an officer or agent upon whom process can be served, or the absence from the State for the period of six months before the issuing of the *622 writ of the agents or officers of any domestic or foreign corporation, or because the officers or agents of any domesticcorporation are unknown, it shall be the duty of the officer to return said writ, with the cause for his inability to serve on same, and upon the return of said writ as aforesaid, the judge of the court from which the same shall have issued" shall make order of publication as therein provided.
Is the statute just quoted from repealed by the Act of 1927, Chapter 11829, now appearing as Section 4257 to 4271, inclusive, of the Compiled Gen. Laws of 1927? Evidently such was not the express legislative intent, for Section 9 of Chapter 11829 (4265 C.G.L.) says: "This law shall be deemed cumulative of all other provisions of law, and nothing herein contained shall prevent the service of process being made upon any corporation in accordance with any statute now in force in the State of Florida."
But certainly the older statute, Section 4256 C.G.L., must in certain respects be construed in connection with other related statutes, including the statute of 1927, as to service of process made since the later Act became effective. Hence the sheriff's return to the effect that "the officers or agents of the Smetal Corporation, a Florida corporation, are unknown" would certainly not, on proper attack, have afforded any legal basis for an order of publication, if, in fact, the Smetal Corporation had complied with the Act of 1927 by filing with the Secretary of State a certificate designating the location of its office or place of business, and keeping posted therein a sign giving the names of the officers and agents of the corporation upon whom process could be served, and keeping at such office or place of business within certain hours of the day one or more of such designated officers or agents, or, in the alternative, designating *623
the office of the clerk of the Circuit Court as its office and the clerk as its agent for the service of process. The officers and agents of the Smetal Corporation may actually have been "unknown" to the sheriff personally, when the summons was lodged with him, but if the corporation had complied with the Act of 1927, certainly its officers and agents would not have been "unknown" in the sense in which that word is used in Section 4256. As so used, the word means unknown after due and reasonable inquiry has been made. Preston v. Bennett, 68 S.E. 45, 47,
The bill in this case charged that the sheriff by his deputy had made his return on the summons on December 27, 1933, the same day the summons was issued. This precipitate action, while not sufficient in itself to repel the presumption that the sheriff had made due inquiry, is highly indicative of the truth of the general allegation of the bill that the order of publication was made before there had been any exercise of reasonable inquiry and due diligence to ascertain whether personal service could be secured on the officers or agents of the Smetal Corporation.
This summons was not returnable until the rule day in February, that is, February 5, 1934. Although the summons was thus subject to service at any time prior to midnight of January 26, 1934, the sheriff made his return on the day it was issued, and it was filed the following day, thus making it impossible (under this writ) for him thereafter to serve the process even should the officers of the defendant corporation have meanwhile become known to him. The making and filing of the return necessarily indicated that the officer had no intention of making any further effort to serve the summons. And according to the record as alleged in the bill, the order of publication was made on the same day the sheriff made his return, December 27, 1933, and hence was made the day before the return was filed in the clerk's office, which was done on December 28, 1933.
A summons may be served at any time prior to ten days before the rule day to which it is made returnable. Here the sheriff made his return thirty days before the expiration *625 of the time within which it could lawfully have been served. As Section 4256 C.G.L. requires a sheriff's return of non-service upon a summons as a prerequisite to the issuance of an order of publication, it is very earnestly contended in the brief permitted to be filed by amici curiae that if a return is made prior to the expiration of the time within which the summons might legally have been served, and obviously made prematurely for the purpose of permitting its use as a basis for an order of publication, such a return does not meet the requirements of the statute; that the statute must be read in the light of the duty imposed by law upon the sheriff to use all reasonable diligence to make actual service of the process from the time it comes into his possession until the expiration of the time within which that process may be lawfully served. That the only reason for requiring a sheriff's return as an essential prerequisite to the issuance of the order of publication is that such a return (when lawfully made) constitutes some evidence that the defendant cannot be reached by the usual and ordinary process of the court. That here it is obvious from the unusual and precipitate method of handling the summons that no real effort was made to serve it, and that the only reason for delivering it to the sheriff was that he might make a return which could be used as a basis for an order of publication.
In support of their contention that the sheriff's return of inability to serve the summons could not have been lawfully made before the expiration of the period within which it could lawfully have been served, the following authorities are cited: Section 5 of the 1931 Chancery Act; Rule 8 of Circuit Court Rules then in force; Cummings v. Brown (Mo.)
Strictly speaking, there is no such thing as personal service upon a corporation. Considered apart from the individual human beings who compose its stockholders, officers and agents, and by and through whom it acts, a corporation is a mere incorporeal legal entity created by government. So when we speak of personal service upon a corporation, we mean personal service upon its officers or agents. Thus Section 4251 C.G.L. provides that process against a corporation may be served upon its officers, in the order named in the statute, and in the absence of such officers, upon a business agent resident in this State, or in the case of a foreign corporation, upon any agent transacting business for it in this State; and the statute contemplates that this kind of service shall be made when reasonably possible to do so. But the beneficial ownership of corporations is in natural persons, and a corporation is a person within the meaning of the due process and equal protection clauses of the Federal Constitution. 21 R.C.L. 1334; Liggett Co. v. Baldridge,
Assuming the validity of the statutes, and the sufficiency of the sheriff's return and also of the certificate of the Secretary of State, it yet remains that neither of these statutes, 4256 nor 4261, were strictly complied with in this case. According to the allegations of the amended bill, above referred to, the order of publication was made before either the summons with the sheriff's return thereon, or the certificate of the Secretary of State, had been filed in the court from which the writ issued, and in which the cause was pending. So, on the prima facie case as made by the amended bill, if the statutes are to be strictly construed, as they must be, the judge was without authority to make the *628 order of publication on the date it was made, December 27, 1933.
It is well settled in this jurisdiction that statutes authorizing constructive service of process by publication must be strictly construed and fully complied with in order to give a court jurisdiction of the person of the defendant. Shrader v. Shrader,
Such strict construction is all the more important in view of the holding in this State that a personal judgment against a domestic corporation may be obtained upon service by publication. Clearwater Mercantile Co. v. Roberts, etc., Shoe Co.,
Chapter 11829 of the Laws of 1927, properly construed, is a constitutional and valid statute. We have so held. See State, exrel. Woods-Young Co., v. Tedder,
It may well be that one of the main objects which motivated the enactment of this statute of 1927 was to enable *629
the courts to deal more effectively with corporations whose incorporation had been secured by ubiquitous "fly-by-night" promoters, but nevertheless the Legislature made it applicable toall domestic corporations and also to all foreign corporations which had heretofore, or might thereafter qualify under the law to transact business in this State, except the corporations mentioned in Section 4270 C.G.L. We must therefore construe this statute, as we have construed all constructive service statutes which have been heretofore brought before this Court for construction, with reference to the due process clause of the Federal and State Constitutions; that is, as applying only to that class of cases in which actual personal service cannot be obtained by the exercise of due diligence. This construction is required by our own previous decisions, as well as by the decisions of the Federal Supreme Court. Tibbetts v. Olson,
If the statute should be construed as one designed to provide an easy and simple method whereby persons desiring to sue a corporation, although they may know where its place of business is and the names of one or more of its officers or agents, or by the exercise of reasonable inquiry and diligence could easily and readily obtain that information, could nevertheless obtain service of process by publication and secure a decree or judgment against the corporation without its knowledge, would be to so construe it as to be at variance with our previous decisions and to render the statute itself unconstitutional as a denial of due process. The constitutional guaranty of due process cannot be circumvented by any statute, no matter how artfully drawn. At the time the statute was adopted, the Legislature knew that this Court had plainly held that resort to constructive service by publication was predicated upon necessity, and that if personal service could be effected by the exercise of reasonable diligence, substituted service was unauthorized. See Tibbetts v. Olson and McDaniel v. McElvy, supra, both of which cases were handed down in May of 1926.
However, as was said in the case of McDaniel v. Mc- Elvy:
"The test, however, is not whether it was in fact possible to effect personal service in a given case, but whether the complainant reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort, appropriate to the circumstances, to *631 acquire the information necessary to enable him to effect personal service on the defendant."
And again in the same case it was very aptly and reasonably said:
"Extraordinary steps to ascertain the whereabouts of the party are not required. But judgments which exclude persons from any interest in or lien upon land should not be rendered without actual notice when by the exercise of reasonable diligence actual notice can be given. Reasonable diligence in such matters is an honest effort, and one appropriate to the circumstances, to ascertain whether actual notice may be given, and, if so, to give it. Such effort, however, need not embrace a search in remote parts of the State (Jacob v. Roberts,
In Ryan's Furniture Exchange Inc., v. McNair,
"The statutes relating to proceedings supplemental to execution have been held constitutional merely because no substantial rights were violated in their enforcement. But if in enforcing these statutes, due process is not observed, the proceeding is to that person a nullity. These statutes must be enforced so as to afford due process.
"In observing due process of law the opportunity to be heard must be full and fair, not merely colorable or illusive. Redman v. Kyle,
Where there has been no abuse of the process of the Court which is provided by Chapter 11829 of the Laws of 1927, by resorting to service by publication when the plaintiff knew, or by reasonable diligence could have readily obtained the information upon which personal service could have been had, the constructive service provided by such statute, if obtained in accordance with its plain provisions, is sufficient to give the court jurisdiction and to sustain the validity of the court's decree based thereon against either direct or collateral attack. There need be no fear whatever that the numerous decrees against "fly-by-night" corporations which have been based upon constructive service obtained in accordance with this statute would be unsettled or disturbed by the decision in this case; because as to such corporations, which had not complied with the statute, and which had no legal domicile, i.e., no established office or place of business and the names and addresses of whose officers were not known and could not be obtained by reasonable inquiry, service by publication was and is fully justified under the due process clause as construed by both the State and Federal Courts. And even on a direct attack seasonably made, if the procedure outlined by the statute has been followed in obtaining service by publication, the prima facie validity of the court's jurisdiction and decree is thereby established, and cannot be disturbed unless the *633 party thus attacking its validity successfully carries the burden of showing that resort to such constructive service was an abuse of the court's process because, by the exercise of reasonable diligence, actual personal service of process could have been had.
But here we are dealing with another type of corporation, one which had an established office and a complete set of officers in the adjoining County of Dade, whose place of business, and the names and addresses of whose officers and of the resident agent upon whom service of process could be made had been filed with the Secretary of State under Chapter 14677 of the Acts of 1931, and which information could readily have been ascertained by the plaintiff in the foreclosure suit, according to the allegations of the bill. Inter alia, it appears from the bill that the deed, conveying this property sought to be foreclosed on, to the defendant in the foreclosure suit had been filed for record some months before in the county where the suit was brought and showed that the defendant was a corporation of Dade County; that there was a conspicuous "for sale" sign on the property which gave the Miami address of the owner's agent, as set forth in our original opinion; that the order of publication was not published in the county seat, but in an obscure paper in a small town in another part of the county; that these together with other allegations of facts, on the whole tend to support the allegations of the bill that constructive service was unnecessarily resorted to, not only without the exercise of even the ordinary diligence which the law requires, but with a studied effort to avoid obtaining the information which could readily have been obtained, and which would have rendered personal service easily obtainable.
There is some question as to whether the form and *634
contents of the Sheriff's return of non-service under Section 4256 was legally sufficient. In this connection, see Fowler v. Chillingworth,
But for the reasons above pointed out, the majority of the Court are of the opinion, considering all the allegations of the amended bill as a whole, there is equity in the amended bill and that the original decision of the Court reversing the order dismissing the same should on this rehearing be adhered to.
Original judgment of reversal confirmed and adhered to on rehearing.
ELLIS, C.J., and WHITFIELD and TERRELL, J.J., concur.
BUFORD and DAVIS, J.J., dissent.
