Cole v. Cole

• Decision Date: 18 February 1941
• Citation: 200 So. 544,146 Fla. 196
• Parties: COLE v. COLE.
• Court: Florida Supreme Court

200 So. 544

146 Fla. 196

COLE v. COLE.

Florida Supreme Court

February 18, 1941

Suit by Howard Cole against Amylita G. Cole for a divorce. A divorce decree was entered. Subsequently, the defendant filed an appearance and motion for vacation of the decree pro confesso, order of reference and final decree. A motion to vacate the decree pro confesso, the order of reference and the final decree, was denied and defendant appeals.

Decree pro confesso, order of reference, and final decree reversed and cause remanded for further proceedings in accordance with opinion. Appeal from Circuit Court, St. Lucie County; Alto Adams, judge.

COUNSEL

Liddon & Fee, of Fort Pierce, and Vincent C. Giblin, of Miami, for appellant.

Carlton & Sample, of Fort Pierce, for appellee.

OPINION

CHAPMAN Justice.

On March 6, 1940, Howard Cole filed in the Circuit Court of St Lucie County, Florida, a sworn bill of complaint against his wife, Amylita G. Cole, praying for a divorce on the ground of extreme cruelty. An affidavit was filed in which it was made to appear that the defendant, Amylita G. Cole had been absent from the State of Florida for a period of more than sixty days next preceding the time or period of making the said affidavit and her address therein was stated to be at 2901 Franklin Street c/o, mrs. Goode, Seattle, Washington. The allegations of the affidavit conformed to the requirements of the statute of Florida controlling constructive service.

On March 6, 1940, an order of service by publication was entered by the Clerk of the Circuit Court of St. Lucie County, Florida, against the defendant Amylita G Cole, requiring that she appear on the 8th day of April, 1940, and answer or defend the bill of complaint filed against her. The order was published in the Fort Pierce News-Tribune, a daily newspaper published at Fort Pierce, Florida, in the issues of March 7th, 14th, 21st and 28th, 1940. On motion of counsel for plaintiff below, a decree pro confesso was on April 10, 1940, entered against the defendant, Amylita G. Cole, because of her failure to appear, plead or answer the said sworn bill of complaint on April 8, 1940, the return day named in the order of publication.

On April, 10, 1940, an order was entered by the lower court appointing a Special Examiner to take and report the testimony to the Chancellor below. On April 13, 1940, the Special Examiner filed her report of all the testimony adduced or taken before her. On April 13, 1940, a decree of divorce on the ground of extreme cruelty was made and entered.

On the rule day in May, 1940, the defendant below, through counsel, filed in the Circuit Court of St. Lucie County an appearance in said cause; likewise a motion for the vacation of the decree pro confesso, the said order of reference and the final decree. On May 18, 1940, an order was entered by the lower court overruling and denying the motion to vacate and set aside the decree pro confesso, order of reference and the final decree. An appeal has been perfected to this Court and it is here contended that the entry of the decree pro confesso and order of reference, each dated April 10, 1940, and the final decree recorded April 15, 1940, were each erroneous.

Counsel for appellant suggest that the question posed by this record for a decision is viz:

'Where service on a defendant in a divorce suit is made by publication and the return day fixed in the order of publication is not a rule day, is the defendant required to appear prior to the rule day next succeeding the return day fixed in such order of publication?'

While counsel for appellee contend that the controlling question for a decision is viz:

'Should a motion to vacate and set aside a decree pro confesso and final decree based thereon made more than twenty days after the entry of the final decree be granted by the trial court, where the motion is not accompanied by an affidavit showing a meritorious defense?'

The point in controversy is controlled or governed by Section 6 of Chapter 14658, Acts of 1931, Laws of Florida, viz:

'Section 6, Appearance. The defendant shall file his writted appearance, personally or by his solicitor, on the rule day to which the summons in chancery is made returnable, provided he had been served with...