Bailey v. Crum

• Decision Date: 06 June 1935
• Parties: BAILEY v. CRUM et al.
• Court: Florida Supreme Court

162 So. 356

120 Fla. 36

BAILEY v. CRUM et al.

Florida Supreme Court, Division B.

June 6, 1935

Rehearing Denied June 26, 1935.

Suit by Richard L. Bailey against C. R. Crum and another. From a decree vacating and setting aside an order pro confesso and final decree for complainant, complainant appeals.

Reversed. Appeal from Circuit Court, Polk County; H. C Petteway, Judge.

COUNSEL

Ed. R Bentley, of Lakeland, and Shackleford, Ivy, Farrior &amp Shannon, of Tampa, for appellant.

Martin & Martin, of Plant City, for appellees.

OPINION

ELLIS Presiding Justice.

This is an appeal from a decree vacating and setting aside an order pro confesso and final decree both entered in the same suit in which the final decree appealed from was entered upon the ground that the complainant in the suit, Richard L. Bailey, had not, nor had any one in his behalf, complied with the requirement of section 4219, Compiled General Laws 1927, in relation to the locality of actions.

That section provides that suits shall be begun only in the county where the defendant resides, or where the cause of action accrued, or where the property in litigation is. It also provides that if the suit is brought in any county 'where the defendant does not reside, the plaintiff, or some person in his behalf, shall make and file with the praecipe or bill in chancery, an affidavit that the suit is brought in good faith, and with no intention to annoy the defendant.' It is provided also that the section shall not apply to suits against nonresidents.

The suit in this case was one to require specific performance of a contract for the sale of land. The suit was brought in Polk county in which the land is located.

The subpoena in chancery was served upon the Crums in Hillsborough county. The bill was filed on February 21, 1927. The subpoena was served February 23, 1927, and on March 7 of the same year Mr. Ed R. Bentley, as counsel for the complainant, made and filed in the clerk's office an affidavit that the suit was in good faith and without intending to annoy the defendants.

The subpoena was returnable on the 7th day of March. On April 4th following, a decree pro confesso was entered against the defendants.

On the 18th day of April a final decree was made and duly entered the 23d day of that month.

About seven years thereafter solicitors for the defendants moved to set aside the decree pro confesso and final decree.

No action seems to have been taken on that motion, but on the 2d day of March, 1934, an amended motion was filed by solicitors in behalf of the defendants, in which the averments of the original motion were repeated in substance and the additional ground was urged that the complainant failed to comply with the requirement of section 4219, Compiled General Laws of Florida, in that he did not make and file with the bill of complaint an affidavit that the suit was brought in good faith and with no intention to annoy the defendant, but that such affidavit was not filed until twelve days after the filing of the bill of complaint.

The chancellor on the 6th day of August made the order from which this appeal is taken.

The chancellor wrote a comprehensive opinion upon the subject presented by the motion in so far as it raised the question of the jurisdiction of the court to entertain the suit because of the failure of the complainant to file with the bill of complaint the affidavit of good faith required by the statute. It was the chancellor's view that the filing of the affidavit subsequently to the filing of the bill 'did not in anywise cure the failure to file it at time required by law.' That the filing of the affidavit with the filing of the bill was a jurisdictional prerequisite without which the court acquired no jurisdiction to make or enter the orders and that the same were void. The chancellor expressed the view in his opinion that the case of Maxcy v. Wauchula Development Co., 97 Fla. 310, 120 So. 852, was decisive of the question.

The chancellor in his opinion referred to the fact which is disclosed by the record, that the affidavit of good faith was not filed 'until sometime after service of the subpoena in said cause had been made on the defendants.'

A suit in equity is not begun until a bill is filed, and no process of subpoena may be issued until the bill is filed in the clerk's office. See Rule 10, Equity Actions. The statute, section 4219, C. G. L., contemplates that a suit may be brought in equity in a county where the defendant does not reside, but in such case the affidavit of good faith shall be filed with the bill. If the filing of the affidavit with the bill where the defendant does not reside in the county is a jurisdictional prerequisite, then both the bill and affidavit are essential to the issuing of process of subpoena. The reference in the decree, therefore, to the affidavit, having been filed after the service of the subpoena, has no bearing upon the conclusion reached by the chancellor; indeed he stated in the decree that it did not cure the supposed jurisdictional defect.

Section 4219, C. G. L., supra, has been carried in the same language in which it appears in the Compiled General Laws of 1927, from the Revised Statutes of 1892, § 998, through the General Statutes of 1906, § 1383, and the Revised General Statutes of 1920, § 2579.

The legislation originated with the Acts of 1887, chapter 3721, section 1 of which provided, 'That hereafter when in any civil suit or proceeding at law in any of the courts of this State, for any purpose whatever, the defendant, defendants, or any one of them therein, resides or is in any county of this State other than the one in which said suit or proceeding is commenced or is pending, any writ, writs, process or notices as authorized by law in civil suits or proceedings, when the defendant or defendants reside in the county where the suit or proceeding is commenced, shall be issued and appropriately directed, and the Sheriff or other proper officer of said county in which said defendant, defendants or any one of them resides or may be found, shall execute and serve said writs, process or notices; and return thereof shall be made to the court from which the same emanated, and such execution or service and return shall be valid to all intents and purposes, and the defendant or defendants so served legally bound thereby; Provided, however, That before any writ, process or notice shall issue by virtue of this section, the plaintiff, or some one in his behalf, shall make affidavit before some officer of this State authorized to administer oaths that said suit or proceeding is, or was, instituted in good faith and with no intention on the part of the plaintiff or plaintiffs, as the case may be, to annoy or defraud said defendant or defendants.'

In 1889 the Legislature, by chapter 3905, provided for the revision and consolidation of the public statutes of the state. The Commissioners appointed by the Governor to perform this work were authorized to revise, simplify, arrange and consolidate all the public Statutes of England, of the Territory and of the State of Florida, which are general and permanent in their nature and which shall be in force in this State at the time such Commissioners shall make their final report. The act proceeded to outline the manner of their work and contained a provision that no changes shall be made in the phraseology of any statute that has been the subject of judicial decision by which the construction thereof as established by such decision shall or can be impaired or affected.

The act adopting and providing for the publication of the Revised Statutes was approved June 8, 1891 (chapter 4055). By proclamation of the Governor made in May, 1892, the Revised Statutes went into effect thirty days thereafter.

Under the provisions of the act of 1829, as amended by chapter 1938, Acts 1873, McClelland's Digest, p. 811, § 5, all process was required to run in the name of the state of Florida, and made returnable to the next ensuing rule day of the court from which it issued. A summons ad respondendum was required to be made returnable to the court having jurisdiction over the county in which the defendant resided or the cause of action accrued, and the cause could not be tried in any other county unless for good cause shown the 'venue' should be changed. In case there were two defendants residing in different counties, it was lawful for the plaintiff to commence his action in either circuit or county in which the other defendant resided. It was made the duty of the officer to serve the summons and return it to the office from which it issued.

In the case of Bucki v. Cone, 25 Fla. 1, 6 So. 160, the court treated the act as prescribing venue. The action was for damages to a toll bridge extending from one county to another, and was brought in a third county. The court said, referring to the statute, McClelland's Digest, supra, that the objection to the venue should be made by plea in abatement, that it was not available either on demurrer or after trial on pleas to the merits.

See, also, Curtis & Shaw v. Howard, 33 Fla. 251, 14 So. 812, 814. In that case, the court, speaking through Mr. Justice Mabry, said: 'When sued in a personal action, of which the court has jurisdiction, in a county other than the one in which he resides or the cause of action accrued, the defendant can waive the privilege given him by the statute [referring to chapter 3721, Laws of 1887 supra], and, when he does not insist on it, a valid judgment can be rendered against him.'

In the case of Sanchez v. Haynes, 35 Fla. 619, 18 So. 27 28, decided three years after the Revised Statutes went into effect, this court, speaking through Mr. Justice Taylor, referring to chapter...