Balian v. Wekiwa Ranch

• Decision Date: 13 February 1929
• Citation: 97 Fla. 180,122 So. 559
• Parties: BALIAN et al. v. WEKIWA RANCH.
• Court: Florida Supreme Court

122 So. 559

97 Fla. 180

BALIAN et al. v. WEKIWA RANCH.

Florida Supreme Court, Division A.

February 13, 1929

Supplemental Opinion, May 29, 1929.

Suit by the Wekiwa Ranch, a corporation, against Artin Balian and others. From an order denying a motion to set aside a decree pro confesso, defendants appeal.

Reversed.

Syllabus by the Court

SYLLABUS

Bill praying declaration and enforcement of vendor's lien for balance due under contract, not attached to bill as alleged held insufficient. Bill of complaint, alleging contract, not attached to bill as alleged, to convey land to corporation of which defendants were stockholders, agents, and officers conveyance thereof to defendants by 'subsequent arrangement,' and breach of contract to use entire amount of mortgage debt, to be assumed by complainant, in construction of hotel for complainant's benefit, and praying declaration and enforcement of vendor's lien for balance due, held not to state ground for equitable relief prayer resting on breach of contract, resulting in damages for which complainant has adequate remedy at law.

To entitle complainant to order of publication, sworn bill or affidavit should state that defendant is nonresident, or has been absent from state over 60 days, or conceals himself (Rev. Gen. St. 1920, § 3111; Acts 1925, c. 10102, as amended by Acts Ex. Sess. 1925, c. 11364). To entitle complainant to order of publication, under Rev. Gen. St. 1920, § 3111, and Acts 1925, c. 10102, as amended by Acts Ex. Sess. 1925, c. 11364, he or his agent or attorney should state in sworn bill or affidavit that defendant is resident of another state or country, and specify his place of residence as particularly as known to affiant, or state that it is unknown, or, if defendant is resident of state, that he has been absent over 60 days next preceding application, or conceals himself so that process cannot be served on him; such absence or concealment being equivalent to nonresidence, within purpose of statute.

Every fact necessary to give right to order of publication should be shown (Rev. Gen. St. 1920, § 3111; Acts 1925, c. 10102, as amended by Acts Ex. Sess. 1925, c. 11364). Every fact necessary, under Rev. Gen. St. 1920, § 3111, to give right to order for service by publication, under Acts 1925, c. 10102, as amended by Acts Ex. Sess. 1925, c. 11364, should be shown; resort to such service being predicated on necessity and unauthorized, if personal service can be effected by reasonable diligence.

Substituted service act is intended to give nonresident title claimant reasonable notice of litigation affecting realty in jurisdiction (Rev. Gen. St. 1920, § 3111). Purpose of Rev. Gen. St. 1920, § 3111, providing for substituted service, is to give nonresident, whose person court cannot bring within limits of its jurisdiction, reasonable notice of pendency of litigation affecting real property, to which he claims title, within such jurisdiction.

Each of alternative statutory situations furnishes distinct, independent, and substantive basis for order of publication (Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364). Each of four alternative situations, set off by commas and separated by disjunctive 'or,' in Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364 (Comp. Gen. Laws 1927, §§ 4895, 4896), including that in which affiant states that defendant's residence is unknown, furnishes a distinct, independent, and substantive basis for issuance of appropriate order of publication, if other requirements of statute are complied with, especially in view of its history; Act Nov. 7, 1828 (Duval's Laws 1839, p. 128 et seq.), Acts 1885, c. 3589, § 1, and Rev. St. 1892, § 1413.

Sworn statement that defendant's residence is unknown is sufficient and independent predicate for order of publication (Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364). Under Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364 (Comp. Gen. Laws 1927, §§ 4895, 4896), sworn statement of complainant, his agent, or attorney, that defendant's residence is unknown, coupled with sworn statement as to defendant's age, is sufficient and independent predicate for issuance of order of publication, subject to requirements of truth, good faith, and reasonable diligence; phrase, 'specifying as particularly as may be known to affiant such residence,' qualifying only preceding condition, under which affiant states his belief that defendant is resident of another state or country.

Mere arbitrary statement as to defendant's residence or whereabouts, or complainant's belief concerning it, in affidavit for publication, is not conclusive (Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364). Mere arbitrary statement as to defendant's residence or whereabouts, or complainant's belief concerning it, in affidavit for order of publication, under Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364 (Comp. Gen. Laws 1927, §§ 4895, 4896), does not conclude matter as against timely and appropriate attack, for statement must be truthful, free from mala fides, and based on something reasonably tangible or perceptible in fact, not merely nebulous or fanciful.

Constructive service is not justified, if personal service can be effected by reasonable diligence (Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364). Resort to constructive service, under Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364 (Comp. Gen. Laws 1927, §§ 4895, 4896), is predicated on necessity, and is not justified, if personal service can be effected by exercise of reasonable diligence.

Sworn statement that complainant's residence is unknown presupposes previous reasonable search and diligence appropriate to circumstances (Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364). Sworn statement, required of complainant seeking order of publication by Rev. Gen. St. 1920, § 3111, as modified by Acts 1925, c. 10102, and Acts Ex. Sess. 1925, c. 11364 (Comp. Gen. Laws 1927, §§ 4895, 4896), that defendant's residence is unknown, presupposes previous reasonable search to ascertain defendant's residence or whereabouts, and diligence appropriate to circumstances of particular case.

Insufficiency of bill in equity may be considered on appeal, though point was not raised by pleadings. Insufficiency of allegations of bill to bring subject-matter within field of equitable cognizance and relief may be inquired into on appeal, even though point has not been raised by pleadings.

Appeal from Circuit Court, Seminole County; W. W. Wright, judge.

COUNSEL

Jas. G. Sharon, Wilson & Boyle, and Jas. G. Sharon, Jr., all of Sanford, for appellants.

Dickinson & Dickinson, of Orlando, for appellee.

OPINION

ELLIS J.

The Wekiwa Ranch, a Florida corporation, exhibited its bill in chancery against the appellants, whose places of residence were alleged to be unknown to the complainant. The bill is sworn to on information and belief by the agent and attorney for the complainant.

A few months after the bill was filed the president of the complainant corporation caused to be filed in the clerk's office his affidavit that the places of residence of the defendants, naming them, were unknown, and that affiant had made diligent inquiry on complainant's behalf to ascertain the places of residence of the defendants; that there was no person in the state of Florida upon whom the service of a subpoena would bind the defendants or either of them, and that it was the affiant's belief that the defendants were over the age of 21 years. The bill also alleges the same state of facts as to the nonexistence of any person in Florida, the service of a subpoena upon whom would bind the defendants, and that they were over the age of 21 years.

On the 5th of May, 1926, an order of publication was made against the defendants, requiring them to appear on the first Monday in June. 1926. the same being the 7th day of the month, and make answer to the bill of complaint. The order was required to be published once a week for four consecutive weeks in the Sanford Herald, a newspaper published at Sanford. Proof of publication was filed showing that the order was published, as directed, in the Sanford Herald, in the issues of May 6th, 13th, 20th, 27th, and June 3, 1926.

The clerk's certificate that he posted a copy of the order of publication at the door of the courthouse for more than five weeks prior to the 7th day of June, 1926, and that he mailed copies of the order to the 'address of the Defendants, as given in the affidavit of Complainant, within 20 days from the making of said order,' was also filed.

Two praecipes for a decree pro confesso against the defendants were filed; one on July 5th, and the other on June 7th. The first requested a pro confesso order for failure to appear, and the second for 'failure to appear, plead, answer or demur to said cause.'

On June 7th the clerk entered the pro confesso order.

The defendants, on December 8, 1926, moved the court to set aside the order pro confesso and permit them to answer.

The grounds of the motion were that the affidavit of the president of the complainant corporation, that the residence of the defendants was unknown, was not true, that he did know the residence of defendants; that the allegation of the bill that their residence was unknown, was untrue; that they had a complete and meritorious defense to the bill, as shown by...