Bemis v. Loftin

• Decision Date: 23 March 1937
• Citation: 127 Fla. 515,173 So. 683
• Parties: BEMIS v. LOFTIN et al.
• Court: Florida Supreme Court

173 So. 683

127 Fla. 515

BEMIS v. LOFTIN et al.

Florida Supreme Court

March 23, 1937

Rehearing Denied April 24, 1937.

Proceeding by Alice McCormick Bemis, a widow, against Scott M. Loftin and others, as trustees and executors under the last will and testament of Henry Ellsworth Bemis, deceased, and others, to set aside a decree annulling complainant's marriage with deceased. From a decree denying relief, complainant appeals.

Affirmed. Appeal from Circuit Court, Palm Beach County C. E. Chillingworth, judge.

COUNSEL

Davis &amp Davis, of Madison, and Charles M. Moon and A. N. Spence, both of Miami, for appellant.

Loftin, Stokes & Calkins, Scott M. Loftin, and John P. .stokes, all of Miami, Gedney, Johnston & Lilienthal, of West Palm Beach, Harold B. Wahl, of Jacksonville, and Harry A. Johnston, of West Palm Beach, for appellees.

OPINION

DAVIS Justice.

This was a proceeding in equity brought by the appellant, Alice McCormick Bemis, to set aside a decree of the circuit court of Duval county made and entered in 1896, annulling a marriage that had been contracted by complainant with one H E. Bemis in New York state on September 10, 1891, of which marriage a child was born January 19, 1982. It was the contention of the appellant that the annulment decree of 1896 was void because of absence of jurisdiction of the circuit court of Duval county over defendant's person, absence of jurisdiction over the marriage res, and void on account of fraud perpetrated by complainant, H. E. Bemis, in that suit both upon the defendant and upon the court rendering the decree. It was prayed that in addition to setting aside the marriage annulment decree above referred to, that the court in this case should adjudge the complainant to be the lawful widow of H. E. Bemis and that she be awarded dower in the latter's estate. The relief sought was denied and the complainant below appealed.

In deciding the case in the court below, the chancellor pronounced the following findings of law and fact as applied to the case at bar:

'With reference to the merits of the cause, it is the finding of this Court that the procural of the decree of annulment bearing date of November 27, 1896, insofar as it terminated the marriage relationship between the parties, was the result of fraud participated in by the defendant in that suit, and practiced upon the Court without any knowledge on the part of the Court or counsel concerning it. Undoubtedly both parties desired the termination of this marriage relationship, and were then quite willing to resort to the means used, in order to bring about that end, promptly and with a minimum of publicity. In view of the fact that the original fraud was participated in by both parties, and the further fact that the plaintiff in this suit is not only estopped by her conduct but barred by laches, no relief can be granted her.

'There is nothing to indicate, however, that either party actually considered the child illegitimate or that either party ever thereafter acted upon any such finding or belief. Since the fire which destroyed the original court records in May, 1901, the only known copy of the decree of annulment reposed, until the death of the plaintiff in the annulment suit, in the private vaults of this plaintiff. He successfully kept its real contents a secret as long as he lived. It does not appear that the defendant in that suit, or the child, ever had any knowledge of the provisions of the decree which sought to declare the child illegitimate, until some 38 years later and after the death of her father. Except in order to terminate the marriage, both parties continuously recognized through a long period of years, that the child was the legitimate child of both and entitled to all the privileges of a child.

'The marriage of the parties was perhaps voidable, construing the marriage in the light most favorable to the plaintiff in the annulment suit, and assuming that the Court had jurisdiction. There is nothing to show that a child born during wedlock should be decreed to be an illegitimate child. She was only four years of age when the decree was entered. She has never had her day in court. Her rights while respected by the parties for almost forty years, seem to have been ignored by the plaintiff in the annulment suit, in asking the Court to declare her to be illegitimate. However, the child seeks no relief in this suit. Whereupon;

'It is ordered, adjudged and decreed that Inez Austin Bemis is the lawful widow of the deceased Henry Ellsworth Bemis, and entitled to dower in his estate, and that the amended bill of complaint be dismissed, with costs in an amount to be hereafter fixed by the Court, taxed against plaintiff.

'It is further ordered, adjudged and decreed that this decree be entered without prejudice to the rights of the child--now Isabel Mallien--to take such action as may be proper with reference to her status or claims as a child of the parties in the annulment suit.'

In seeking reversal of the foregoing decree, appellant takes the position that the suit at bar is a direct attack on the chancery decree of annulment of marriage rendered in Duval county circuit court of November 27, 1896, in an original proceeding instituted for that purpose, and that the whole case must turn upon the validity vel non of the annulment decree in the light of appellant's contention that (1) there was no service of process personally had upon appellant as a defendant in the 1896 annulment suit, in Florida or elsewhere; (2) that the constructive service attempted to be had by publication against her was void because no constructive service by publication in a newspaper in such cases had been authorized by statute when the case was brought in 1896; (3) an annulment proceeding respecting marriage is a proceeding in personam and therefore constructive service would be unavailing if provided for by statute; (4) that while a praecipe for personal appearance of defendant in the former case appears to have been filed and regarded as authentic by the court passing the decree therein, that such praecipe for appearances was in fact unauthorized and unsigned by the defendant therein, who never became bound thereby, and (5) that the res of the marriage sought to be annulled and decreed in the former case to be annulled was in New York where it had been contracted and not in Florida, and that at the time of the annulment suit neither plaintiff nor defendant therein was a citizen or resident of Florida authorized to maintain such a suit in this state.

The facts upon which the chancellor decided the case may be briefly summarized as follows: In the fall of 1890 one H. E. Bemis (now deceased) became involved in an affair of sex with a school girl by the name of McCormick, the present appellant, who sued below as Alice McCormick Bemis. She advised him that she was about to become a mother and solicited from him the protection of a marriage to meet the situation. The marriage was performed and the child born, but further than this nothing was done to act upon the marital relationship.

Some time later the wife made a statement at Bemis's request, according to her present testimony, that in truth and in fact the child so born after the marriage ceremony was not Bemis' child. Upon the basis of such statement, the marriage was annulled by the decree of 1896. After the annulment, the former wife took another man and lived with him until the latter's death in 1916. $2,000 life insurance was subsequently collected by appellant in her assumed status of widow of the lastmentioned man as her husband. Later Bemis contracted and consummated three marriages, one of which resulted in the birth of a child. During all of the time subsequent to the 1896 annulment decree the appellant, altho knowing of Bemis' situation and subsequent marriages predicated on the unchallenged validity of the 1896 annulment decree aforesaid, never attempted to interfere with Bemis with respect to said subsequent marriages, nor did she abdicate her own assumed position as the wife of a second husband whom she lived with in a marital relationship from 1903 until 1916. It was not until after Bemis' death in 1934 that any objection to the 1896 annulment decree was interposed, and then only in an effort to have such annulment decree set aside in order that appellant might be decreed to have dower in the deceased Bemis' estate.

Thus summarized, the facts adduced present a question of conflicting equities between the claim of the surviving widow of Bemis' last marriage, Inez Austin Bemis, and the equitable right of Bemis' first wife to judicially avoid, on the grounds of illegality assigned, the long standing annulment decree that that been rendered in 1896.

We shall first give our attention to the nature of the controversy before us. Is its essence a direct or collateral assault on the annulment decree of the circuit court of Duval county as rendered in 1896? If direct, the rule of law relied upon by appellant will control its determination. If collateral, another and different rule will prevail.

This is so because it is the duty of the courts in general to set their faces against all collateral assaults on judicial proceedings, not only because such attacks are frequently devoid of merit, but because the courts of justice should not allow themselves to be brought into dispute by having their forums looked upon by the citizenry as places where mere jugglery and smartness are substituted for justice toward innocent third parties who have become entitled to assume that acting at all, a court whose decree or judgment has been attacked, must necessarily have investigated and determined that it had jurisdiction of the subject-matter of the particular case...