Catlett v. Chestnut

Decision Date02 January 1933
Citation146 So. 241,107 Fla. 498
PartiesCATLETT v. CHESTNUT.
CourtFlorida Supreme Court

Rehearing Denied Feb. 10, 1933.

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Proceeding by Addie Irene Catlett, who, to review a judgment on a directed verdict for Charles H. Chestnut, as executor of the estate of B. S. Catlett, deceased, brings error.

Reversed and remanded, with directions.

See also 146 So. 547.

BROWN J., dissenting.

On Petition for Rehearing.

COUNSEL

Wm. M. Toomer and Chas. A. Powers, both of Jacksonville, and George P. Garrett, of Orlando, for plaintiff in error.

Knight & Frazier and Knight, Adair, Cooper & Osborne, all of Jacksonville, for defendant in error.

OPINION

DAVIS Justice.

This is the second appearance of this case in this court.

Upon its first appearance we reversed the judgment upon writ of error, and remanded the issues made for a trial by jury according to law. See Catlett v. Chestnut, 100 Fla 1146, 131 So. 120. The present writ of error was taken from a directed verdict and final judgment rendered against plaintiff in error as petitioner in the case below when the case was tried there by jury pursuant to our previous mandate.

In the course of the trial the circuit judge was required by the pleadings and the evidence adduced to pass upon the validity of a divorce decree which plaintiff in the trial had obtained from her former husband. The defendant contended that the decree was void. This contention was predicated on the ground that no service of process had been legally effected on one Charles Lenz, who was named as defendant in the divorce proceeding. The trial judge sustained the defendant's objections, held that the divorce decree was void, and directed a verdict requiring the jury to find in favor of such defendant on the issue of the plaintiff's alleged subsequent common-law marriage to Benjamin S. Catlett, whose widow plaintiff-petitioner pretended and asserted herself to be, in order to support her claim to dower in Catlett's estate.

At the outset we make reference to the fact that the mode in which the question of validity of the divorce decree was presented in this case in the court below makes it necessary for us to determine, as the real proposition to be decided, whether or not that divorce decree was subject to being held void in this case on collateral attack.

The general rule on the subject is that the record in support of a judicial decree may be grossly insufficient to show complete regularity of procedure, and yet be entirely sufficient to shield the decree from collateral attack. Van Fleet on Collateral Attack on Judicial Proceedings, par. 1, ch. 1, pp. 1-3.

The petitioner (plaintiff), as part of her case in chief, introduced in evidence a certified copy of the decree of divorce, divorcing her from her husband, Charles Lenz, whom she had previously testified had been married to her on July 4, 1922. She also testified that the Hillsborough county divorce proceedings had been brought by her, and were the only divorce proceedings she had ever instituted against her said husband, Charles Lenz. Charles Lenz himself appeared as a witness, and corroborated petitioner's testimony in the foregoing particulars.

Upon that state of the record, the defendant thereupon offered in evidence a complete transcript of the divorce proceedings in the Hillsborough county circuit court, upon which proceedings the petitioner's decree was based. The transcript so offered included all the papers filed, all the evidence, all the pleadings, and all the record entries in that cause.

This transcript was offered by the defendant to show that the alleged decree of divorce relied upon by petitioner as evidence of a legal dissolution of the bonds of matrimony theretofore existing between petitioner and Charles Lenz was null and void, and consequently that the Lenz marriage remained undissolved prior to and at the time petitioner claimed that she afterward on February 2, 1927, contracted a common-law marriage with Benjamin S. Catlett. [1]

There was an order of publication entered in the case, which order was made and published in the following form:

'In the Circuit Court, Thirteenth Judicial Circuit Hillsborough County, Florida. In Chancery. No. 20265.

'A. Lenz vs. Charles Lenz.

'It appearing by a sworn bill in the above stated cause that Charles Lenz, the defendant therein named, is a non resident of the State of Florida; that the address of said de endant is unknown to complainant; that there is no person in the State of Florida service of a subpoena upon whom would bind said defendant, and that said defendant is over the age of twenty-one years; it is therefore ordered that said non-resident defendant be and he is hereby required to appear to the bill of complaint filed in said cause on or before Monday the 3rd day of December, A. D. 1923, Otherwise the allegations of said bill will be taken as confessed by said defendant.

'It is further ordered that this order be published once a week for eight consecutive weeks in the Free Press, a newspaper published in said County and State. Done and ordered in Tampa, Fla., this the 5th day of October, A. D. 1923.

'[Seal.]

W. R. Watkins, Clerk Circuit Court,

'By Clara King, D. C.
'Dickenson & Diaz, Solicitors for Complainant.'

This order was filed October 5, 1923, but does not appear to have been recorded. While it appears to have been duly published in the statutory manner and for the statutory time, yet the affidavit of publication furnished by the newspaper published was never attested by the notary before whom it was sworn to, although signed by the publisher with a recital that he had sworn to it. Proper certificate of publication of the order of publication was made and filed by the clerk. Decree pro confesso for want of appearance, plea, answer, or demurrer, having been entered by the clerk and recorded, testimony was taken before Circuit Judge L. L. Parks, who heard the case in person, and thereafter on January 7, 1924, rendered a final decree of divorce which was subsequently recorded on January 8, 1924. [2]

It appears beyond dispute that Lenz was never personally served with process, that he never personally appeared, and that the allegations of the sworn bill of complaint, and recitals of the order of publication, are the sole basis for the process by constructive service which was had against him.

This court has consistently held that statutes authorizing constructive service of process by publication should be strictly and exactly pursued in order to give a court jurisdiction to render a decree by default against a party who does not appear or plead in the case, and that this principle has especial application to proceedings under constructive service in divorce cases. Shrader v. Shrader, 36 Fla. 502, 18 So. 672; Ortell v. Ortell, 91 Fla. 50, 107 So. 442; Thomson v. Thomson, 94 Fla. 1046, 115 So. 496. See, also, Balan v. Wekiwa Ranch, 97 Fla. 180, 122 So. 559; Slaughter v. Abrams, 101 Fla. 1141, 133 So. 111; Mabson v. Mabson (Fla.) 140 So. 801.

We have further held that in every case where constructive service is attempted, if there is a failure to pursue the essential requirements of the statute, the decree rendered upon such illegal constructive service is void as to parties who have not appeared or pleaded in the case. Shrader v. Shrader, supra; Beverette v. Graham, 101 Fla. 563, 132 So. 826. And such rule was restated and followed by this court as late as the case of Mabson v. Mabson, 140 So. 801, decided February 2, 1932.

But the proposition we are now called on to decide on this writ of error is, when a sworn bill of complaint (or affidavit) for constructive service has been made and filed in such form that while it tends to show every material jurisdictional fact required by the statute to be set up to authorize an order of publication for constructive service, it fails to do so in the precise statutory language, whether or not the resultant constructive service had can be deemed sufficient to shield the validity of the final decree in such a case, where that decree is attacked collaterally, and not directly.

The weight of authority is to the effect that if an affidavit for constructive service is defective, but nevertheless tends to show each material statutory fact necessary to be shown to make valid constructive service, and there is not an entire omission to state any required material fact, but such material fact is only inferentially or insufficiently set forth, the proceedings upon such defective affidavit are merely voidable, not void, and are not subject to being struck down upon collateral attack. Van Fleet on Collateral Attack on Judicial Proceedings, pages 318, 319; Harris v. Claflin, 36 Kan. 543, 13 P. 830; Pettiford v. Zoellner, 45 Mich. 358, 8 N.W. 57; Atkins v. Atkins, 9 Neb. 191, 2 N.W. 466; Holmes v. Holmes, 15 Neb. 615, 19 N.W. 600; Welles v. Thornton, 45 Barb. (N. Y.) 390; Forbes v. Hyde, 31 Cal. 342; In re Faulkner, 4 Hill (N. Y.) 598, text page 602.

An examination of the sworn bill of complaint upon which the challenged order for constructive service was made reveals the fact that by it the defendant, Lenz, was alleged to be a nonresident of the state of Florida, and that his 'address' was unknown, whereas the statute [3] requires that the sworn bill (or affidavit) show that it is the affiant's belief that the defendant's 'residence,' not his 'address', is unknown.

It was contended by the defendant in error, as defendant in the court below, and is contended here, that where the complainant in a chancery case seeks constructive process under a particular portion of a particular statute, that he must bring himself clearly within...

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