Beverette v. Graham

• Decision Date: 05 March 1931
• Citation: Beverette v. Graham, 101 Fla. 563, 132 So. 826 (Fla. 1931)
• Parties: BEVERETTE v. GRAHAM et al.
• Court: Florida Supreme Court

132 So. 826

101 Fla. 563

BEVERETTE v. GRAHAM et al.

Florida Supreme Court

March 5, 1931

Commissioner's Decision.

Suit by Annie Graham and husband against Abner Burton and wife, and others.From the decree rendered, defendantGertrude Beverette appeals.

Reversed and cause remanded without prejudice to another suit.

Syllabus by the Court.

SYLLABUS

Where the bill of complaint in a partition suit is not sworn to by the complainant, but by his solicitor, the jurisdiction of the court is not invoked in the manner required by statute and the cause is not legally before the court.

Where it is prescribed by statute or rule of court that an affidavit to a pleading shall be made by the party in person no one else can make it.

Where a bill of complaint in a partition proceeding is sworn to by solicitor for complainant and not by complainant, it is insufficient to enable the clerk to make an order of publication which will be binding upon nonresident defendants who fail to appear generally in the cause.Appeal from Circuit Court, Escambia County; Thomas F West, judge.

COUNSEL

F. W. Marsh, of Pensacola, for appellant.

William Fisher, of Pensacola, for appellees.

OPINION

DAVIS C.

A bill of complaint, was filed in the circuit court of Escambia county on behalf of Annie Graham, appellee, for the partition of certain real estate.The bill was sworn to by solicitor for complainant.An order for constructive service was made and published requiring the appearance of the defendantsAbner Burton and wife and Julius Burton and wife, they being nonresidents of the state.The defendantGertrude Beverette appeared in the cause and filed an answer to the bill.A decree pro confesso was entered against the other defendants for failure to appear and answer.In due course a decree for partition of the property was entered awarding to the several parties interested certain shares therein.The appellant, being dissatisfied with the decree, entered her appeal.

'Suits for a partition of real estate shall in all cases be by bill in chancery, and all proceedings, except where herein otherwise provided, shall be as in other cases in chancery.'Section 4994(3202), Compiled General Laws of Florida 1927.And 'such bill must be sworn to by one or more of the complainants' etc. section 4997(3205), Compiled General Laws of Florida 1927.Our statute contemplates the filing of a bill in the clerk's office before a subpoena in chancery shall issue or an order for publication shall be made.Sections 4891(3107)and4895(3111), Compiled General Laws of Florida 1927.

If the proceeding in chancery is brought for the partition of real estate, the bill must also be sworn to by complainant.The chancery court, has jurisdiction to hear and determine cases involving the partition of real estate, but 'in order to confer actual jurisdiction of the particular case, or subject-matter thereof, the jurisdictional power of the court must be invoked by such measures and in such manner as is required by the local law of the tribunal, and can be invoked only by some method known to the law.Before jurisdiction may be exercised there must be a cause legally before the court, which ordinarily requires its presentation by way of a suit, and not merely by agreement, which suit must be commenced in order to enable the court to take any judicial action in the cause in the manner provided for by the statute creating it.'17 Std. Ency. of Proc. 674, 675.See also15 C.J. 729.

The jurisdiction of the court was not invoked in the instant case in the manner required by the statute inasmuch as the bill of complaint was not sworn to by the complainant, but by her solicitor.The cause was therefore not legally before...