Bowmall v. Bowmall
Decision Date | 21 April 1937 |
Citation | 127 Fla. 747,174 So. 14 |
Court | Florida Supreme Court |
Parties | BOWMALL v. BOWMALL. |
Suit by Rosalind Nathan Bowmall against Leo William Bowmall, wherein the defendant moved to quash the order for constructive service and dismiss the proceedings. From an order denying the motion, the defendant appeals.
Reversed and remanded, with directions.
DAVIS J., dissenting. Appeal from Circuit Court, Broward County George W. Tedder, judge.
Green & West, of Daytona Beach, for appellant.
C. H. Landefeld, Jr., and T. D. Ellis, Jr., both of Hollywood, for appellee.
The appeal in this case brings for review an order entered by the circuit court in and for Broward county, Fla., on January 11, 1936, in the following language:
The appellee filed her bill for divorce in the circuit court of Broward county, Fla., on October 26, 1935, in which she alleged that she was a resident of Hollywood, Broward county, Fla.; that she was over the age of 21 years; that she had resided in Hollywood, Broward county, Fla., for a period of more than 90 days next prior to the filing of the bill of complaint; that the defendant, Leo William Bowmall, is over the age of 21 years and is a resident of New York City, county of New York and state of New York; that plaintiff and defendant entered into the holy bonds of matrimony in New York City on November 29, 1921, and that they resided in New York City until November, 1933, and that plaintiff has resided in Hollywood, Broward county, Fla., since December, 1933, continuously; that plaintiff completely separated from defendant in January of 1935; and that plaintiff has been a citizen and resident of Hollywood, Broward county, Fla., since December, 1934. There are other allegations of the bill not material to the issues here.
On December 2, 1935, defendant, appearing specially and solely for the purpose of contesting the jurisdiction of the court, filed a motion. The motion was as follows:
'Comes now the defendant, Leo William Bowmall, appearing herein specially and solely for the purpose of contesting the jurisdiction of this Court: (1) Over the person of this defendant, and/Or (2) Over the subject matter of this suit, and not otherwise, and thereupon says:
'1. That the matrimonial domicile of the plaintiff and defendant is now, and continuously has been since their marriage, in the City of New York, State of New York. That neither plaintiff nor defendant is now, or ever has been, a resident of or in Broward County, State of Florida, but on the contrary have continuously since their marriage resided in, and been residents of, the City of New York, State of New York.
'2. That plaintiff and defendant were lawfully married in the City of New York, State of New York, on November 29, 1921. Within one year after their marriage, defendant entered into business in the City of New York and he and plaintiff established a residence and home there and that he and plaintiff have resided together there continuously since that date. That each of the children born of plaintiff and defendant was born in said city. That for a period of about six years, upon the advice of a physician in connection with the illness of the eldest child of plaintiff and defendant, Suzanne Bowmall, Plaintiff, with the consent of defendant, has spent considerable time in the State of Florida, but has at the termination of each stay there returned to New York City and resumed her residence there with the defendant. That the plaintiff and defendant and their children lived together in New York City, New York, during the summer of 1935 and on or about October 1st 1935 the plaintiff with the knowledge and consent of defendant, returned to Broward County, Florida, for the winter months on account of the ill health of their child, Suzanne Bowmall. That the absence of plaintiff from the matrimonial domicile of plaintiff and defendant in New York City was not caused or occasioned by any default of the defendant and that such absence was occasioned, in part, because of the condition of health of the infant child of plaintiff and defendant.
'Wherefore, defendant respectfully submits that this Court has no jurisdiction over the person of defendant, nor has the Court the lawful right to hear and determine the alleged right and rights of plaintiff to be divorced from this defendant or to grant plaintiff any relief in such cause, whatsoever:
'Wherefore defendant moves the Court as follows:
'(a) To quash the order for constructive service herein.
'(b) To dismiss said proceedings herein.'
The motion was verified by oath of the defendant.
On December 18, 1935, the complainant, through her attorneys, set the motion down for hearing in the following language:
'To Green & West,
'Solicitors for Defendant, Leo William Bowmall.
On January 15, 1936, the court entered an order nunc pro tunc as of December 21, 1935, in the following language:
'The Court being advised of its judgment in the premises, it is thereupon
'Ordered that the legal sufficiency and substance of defendant's said motion be and the same is hereby sustained and that the Court will hear evidence thereon at its Chambers in the Court House at Fort Lauderdale, Florida, at ten o'clock A. M. on January 3rd, A. D. 1936.
'Done and ordered at Fort Lauderdale, Florida, this 15th day of January, A. D. 1936, nunc pro tunc, December 21st A. D. 1935.'
On January 15, 1936, the cause came on for hearing, for proof of facts in support of defendant's motion to dismiss. Testimony was taken before the chancellor and after the conclusion thereof the order hereinbefore referred to as the order appealed from was entered. Section 32 of the Chancery Practice Act (Acts 1931, c. 14658) provides, in part, as follows:
'The defendant shall, unless the time be enlarged by the court, file his answer or other defensive pleadings in the clerk's office on the rule day next succeeding that fixed for the entry of an appearance, whether the service shall have been personal or constructive.'
Subsection (2) of section 33, provides, as follows:
We do not think that the latter provision precludes a defendant from testing the jurisdiction of the court in any other manner than by including his challenge to the jurisdiction in an answer. If the defendant wishes to challenge the jurisdiction of the court he may file a special appearance for that purpose only and may therewith present his challenge of the jurisdiction in an equity suit by a verified motion as was done in this case. It is immaterial whether it be called a plea to the jurisdiction or a motion challenging the jurisdiction. It is the substance and not the form which should be looked to. As we construe that part of section 32 of the Chancery Practice Act hereinabove quoted, it contemplates that the defendant may file his answer or any other defensive pleadings in the clerk's office on the...
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