Barnes v. Willis
| Decision Date | 15 April 1913 |
| Citation | 65 Fla. 363,61 So. 828 |
| Parties | BARNES v. WILLIS. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Jackson County; W. H. Price, Judge.
Bill by Ella Barnes against R. A. Willis, etc. From a decree dismissing the bill, complainant appeals. Affirmed.
Syllabus by the Court
In whatever form the impeachment of a sheriff's return is presented, it requires clear and convincing evidence to overcome the statements of a return under the sanction of official oath and responsibility.
Very clear and convincing evidence of fraud is required where the party charged with the fraud is dead.
Where a party has knowingly and willingly acquiesced in a decree of divorce for 11 years, during which time the other party to the decree and the sheriff who made return of service of the process in the cause have both died, the decree of divorce will not be annulled for alleged failure to serve notice of the suit and for collusion between the sheriff and the deceased party in the matter of service of the process, where the proofs of the alleged want of service and of the collusion are not clear and convincing.
In proceedings to annul a decree of divorce, where property rights in real estate would be affected by a decree of annulment and the other party is dead, the heirs of such deceased person should be made parties.
COUNSEL D. L. McKinnon, of Marianna, for appellant.
Smith & Davis, of Marianna, for appellee.
In May 1911, the appellant brought suit to annul a decree of divorce obtained against her by Alexander Barnes in 1900, and seeking restoration to rights she claims as the widow of Alexander Barnes, who died in January, 1911. The bill of complaint was dismissed, and the complainant appealed.
It is alleged that the decree of divorce was obtained by fraud, in that she was not aware of the divorce proceedings until after the decree of divorce was rendered. It is charged that the subpoena returned in the cause by the sheriff as having been served on her in person and a true copy thereof delivered to her was not served on her, and she was in no wise made aware of the divorce proceedings; that she was ignorant, and accepted support from her husband away from his home after he told her of the divorce, though she lived with him as his wife while the divorce proceedings were in progress, and for two months after the decree, when he told her of it and removed her from his home; that she did not bring suit to annul the divorce decree because of her fear that the decedent would kill her, as he threatened to do if she brought suit to annul the divorce decree. The prayer is for an annulment of the divorce decree, for an accounting, and for alimony and suit money. Temporary alimony and suit money were denied. The answer of the defendant denies the invalidity of the divorce decree, and denies fraud and collusion between the decedent and the sheriff in making service on the complainant here in the divorce proceedings brought against her by the decedent.
The subpoena addressed to Ella Barnes as defendant in the divorce proceedings bears date November 14, 1899, and the return of the sheriff thereon states that it was served November 22 1899, Ella Barnes, the complainant herein, testified that a small, white man came to her home She further testified that after the white man left she asked Barnes why he was suing her for divorce without letting her know about it, and 'he said he had thought he wanted a divorce, but he had decided he did not want any divorce.' 'He said he was not going to get a divorce, and that I need not pay any attention to what was said by that man.' This testimony as to communications with her deceased husband, though not objected to, was...
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Smith v. Mcewen
... ... agreement to alter or vary a written one ... [ 3 ] See Clements Naval Stores Co. v. J. S ... Betts Co., 85 Fla. 49, 95 So. 126; barnes v. Willis, 65 Fla ... 363, 61 So. 828 ... ...
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Matthews v. Matthews
...Bell Corp. v. Bahama Bar & Restaurant, Inc., Fla.1954, 74 So.2d 292, 294. '* * * very clear and convincing evidence.' Barnes v. Willis, 1913, 65 Fla. 363, 61 So. 828, 829. '* * * the clearest proof * * *.' Dova v. Hancock, 1924, 88 Fla. 503, 102 So. 646, 648. '* * * should be not only clear......
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Vander v. Casperson
...1959, affirmed the order in the following per curiam opinion, 116 So.2d 653: 'Affirmed upon authority of the rule stated in Barnes v. Willis, 65 Fla. 363, 61 So. 828; Clements Naval Stores Co. v. J. S. Betts Co., 85 Fla. 49, 95 So. 126; Golden Gate Development Co. v. Ritchie, 140 Fla. 103, ......
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Simons v. Miami Beach First Nat. Bank, 63-201
...after she had notice of his divorce suit, lulled her into inaction, was properly denied by the chancellor, for her delay (Barnes v. Willis, 65 Fla. 363, 61 So. 828) and on the merits. That issue was tried before the chancellor in the instant case, in the course of which it was required that......