Arcadia Citrus Growers Ass'n v. Hollingsworth

• Decision Date: 07 December 1938
• Citation: 185 So. 431,135 Fla. 322
• Parties: ARCADIA CITRUS GROWERS ASS'N et al. v. HOLLINGSWORTH et al.
• Court: Florida Supreme Court

185 So. 431

135 Fla. 322

ARCADIA CITRUS GROWERS ASS'N et al. v. HOLLINGSWORTH et al.

Florida Supreme Court

December 7, 1938

Rehearing Denied Jan. 13, 1939.

Bill in the nature of a creditor's bill by the Arcadia Citrus Growers Association and others against Juanita T Hollingsworth, administratrix of the estate of J. N Hollingsworth, deceased, and others. From adverse orders plaintiffs appeal.

Reversed and remanded. Appeal from Circuit Court, Desoto County; W. T. Harrison, judge.

COUNSEL

Leitner & Leitner, of Arcadia, for appellants.

John B. Singeltary, of Bradention, for appellees.

OPINION

BROWN Justice.

This is the second appearance of this cause in this court. See Hollingsworth v. Arcadia Citrus Growers Association, 122 Fla. 90, 165 So. 369.

The amended bill of complaint alleges that Arcadia Citrus Growers Association obtained a judgment against Juanita T. Hollingsworth, as administratrix of the estate of J. N. Hollingsworth, deceased; that this judgment was obtained on a note; that the note in question was assigned by J. N. Hollingsworth to his wife, the defendant Juanita T. Hollingsworth, but was assigned at a time when the said J. N. Hollingsworth was absolutely insolvent and was a fraud upon all of his creditors. The amended bill was in the nature of creditor's bill.

The defendant Juanita T. Hollingsworth filed two answers, one in her individual capacity and the other as administratrix of her deceased husband's estate. Her separate answer contained the following allegations:

'Further answering said Bill of Complaint this defendant shows unto the Court that said alleged judgment is further void for a want of jurisdiction over the said defendant, Juanita T. Hollingsworth, as administratrix, because and for the reason that the original summons ad respondendum was in accordance with the praecipe and directions of the firm of Leitner & Leitner, Attorneys for the complainant, Arcadia Citrus Growers Association, issued by the Clerk of said Court on the 24th day of February 1928 and made returnable to the 1st Monday in March, 1928, and this defendant shows unto the court that the first Monday in March 1928 was the 5th day of said month, and that ten days did not intervene between the issuance of said summons and the return day as required by Statute. That said summons as issued was issued by said Clerk without statutory authority and contrary to the statute and void, and that the pretended service upon the said defendant as endorsed and written on said summons requiring the said administratrix to appear to a day prior to the date as fixed by the Statute was likewise void.'

Practically the same allegations are found in the answer of Juanita T. Hollingsworth as administratrix.

The plaintiffs filed motions to strike parts of the answers. The court struck some parts of the answers, but left standing that part of the answers above quoted. The plaintiffs appealed, assigning sixteen errors.

The only question necessary to be determined on this appeal is whether a final judgment, entered by the clerk upon a default, is null and void and subject to collateral attack when defendant was properly served and everything was done in accordance with law, save and except that ten days did not intervene between the issuance of the summons and the return day thereof. The lower court held the judgment to be void. This we deem to be the only meritorious question involved in this appeal.

Section 4236, Compiled General Laws of Florida 1927, provides:

'All writs of process, upon the institution of any suit, shall be made returnable to the next rule day thereafter, unless there shall not be ten days intervening between the day of the issuing of the same and the next rule day in which case the same shall be made returnable to the rule day in the next succeeding month: Provided, however, that the provisions of this section shall not apply to writs of quo warranto, habeas corpus, mandamus and prohibition, which said writs shall be returnable at such time as the court may direct.'

The word 'between', when used in speaking of the period of time between two certain days, generally excludes the days designated as the commencement and termination of such period. Hodges v. Filstrup, 94 Fla. 943, 114 So. 521. It follows that the summons should have been issued on Thursday before the Thursday before the rule day to which the summons is made returnable. The writ in question being applied for and being issued by the clerk on Friday, February 24, 1928, and the next rule day thereafter being the 5th day of March, ten days did not intervene between the March rule day and the date of the issuance of said writ, and section 4236, supra, was not complied with.

Section 4237 of the Compiled General Laws of Florida 1927, provides:

'All process, upon the institution of a suit, shall be served at least ten days before the rule day to which it is made returnable.'

Where an act is to be performed within a specified period of time the general rule for the computation of such period is to exclude the first day of the period and include the last day. Croissant v. DeSoto Improvement Co., 87 Fla. 530, 101 So. 37. It follows that the summons in the case at bar was properly served on the Friday before the Thursday before the rule day to which the summons was made returnable, and section 4237, supra, was complied with.

Every judgment must contain three jurisdictional elements: namely, jurisdiction of the subject matter; jurisdiction of the person; and the power or authority to render the judgment. Freeman on Judgments, Vol. I, Sec. 226, p. 444. It is admitted that the court had jurisdiction of the subject matter, and the actual service of the summons upon the defendant within the time prescribed by section 4237, C.G.L., was sufficient to give the court jurisdiction of the person. Therefore, the sole question to be determined is whether or not the clerk had the power or authority to render the judgment when the summons was not issued in accordance with the provisions of Section 4236, supra.

Section 4285, Compiled General Laws of Florida 1927, confers authority upon the clerk of the Circuit Court to enter a default against a defendant for failure to appear, or to plead or demur, within the time required by law, and under Section 4288 the clerk may proceed to enter final judgment in certain cases. The authority and jurisdiction thus conferred upon clerks is purely statutory and must be strictly construed. Cosmopolitan Fire Ins. Co. v. Boatwright, 59 Fla. 232, 51 So. 540; Holder Turpentine Co. v. M. C. Kiser Co., 68 Fla. 312, 67 So. 85.

The power of a clerk of the court to enter a default and final judgment is similar to, and comparable with, the power of the court to obtain jurisdiction of the person by publication. That is to say, both are creatures of the statute; both are dependent on a strict compliance with the statute for validity; and both are dependent on a strict construction of the statutes for their validity.

In Mabson v. Mabson, 104 Fla. 162, 140 So. 801, a wife brought a bill in the nature of a bill of review in a divorce proceeding alleging that the decree of divorce was void because the return day was only twenty-seven days from the date of the order for constructive service, and that the period of newspaper publication of such notice was therefore not in strict accord with Florida Statutes regulating same. At the time of the institution of the divorce suit, notice of same was duly mailed to the wife in New York. She admits that she received such notice, but she did not appear in the divorce proceedings. The court said [page 803]:

'This Court is committed to the doctrine that statutes authorizing constructive service of process by publication should be...