Cone Bros. Const. Co. v. Moore

• Decision Date: 19 January 1940
• Citation: 193 So. 288,141 Fla. 420
• Parties: CONE BROS. CONST. CO. et al. v. MOORE et al.
• Court: Florida Supreme Court

193 So. 288

141 Fla. 420

CONE BROS. CONST. CO. et al. v. MOORE et al.

Florida Supreme Court, Division B.

January 19, 1940

Suit by Malinda W. Moore (Mrs. A. J. Moore), joined by her husband A. J. Moore, against the Cone Bros. Construction Company and another to foreclose a mortgage on real estate. From an order striking an amendment to their answer, defendants appeal.

Reversed and remanded. Appeal from Circuit Court, Hillsborough County Harry N. Sandler, judge.

COUNSEL

Bucklew & Allison, of Tampa, for appellants.

Charles F. Blake, of Tampa, for appellees.

OPINION

PER CURIAM.

Plaintiffs below, appellees here, filed their bill of complaint in 1937 to foreclose a mortgage held on certain real estate in Hillsborough County. In it they alleged that one H. Palmer Harn, owner of the mortgaged property, being indebted to Mrs M. W. Moore, executed and delivered to Mrs. Moore his promissory note, dated February 22, 1927, and as security for the note he executed and delivered to Mrs. Moore a mortgage deed to the premises involved; that there were no instruments, conveyances or incumbrances of record on the property at that time nor at the time their mortgage was filed for record, namely, March 15, 1927; that defendants claim some right, title or interest in and to the land by virtue of an assignment to Cone Brothers Construction Company of a mortgage held by Subdivision Developers, Inc., the said mortgage bearing the date of December 30, 1926, but that the said mortgage was actually executed, acknowledged and filed for record subsequent to the execution and recordation of the mortgage running in favor of the appellee, Mrs. Moore; that defendant, Cone Brothers Construction Company, by suit in 1928, foreclosed its mortgage, naming appellees as parties--service being had by publication; that such service was invalid and the decree rendered thereon void; that appellees' mortgage is a first mortgage and a prior lien hence they were neither necessary nor proper parties to the former suit and the decree pro confesso rendered against them is of no force and effect in so far as it affects their rights in the premises.

Defendants below, appellants here, filed their answer denying generally the allegations in the bill, and specifically set out that the mortgage foreclosed by the defendant, Cone Brothers Construction Company, was a purchase money mortgage, admitting, however, that it was not recorded until after that of the appellee, Mrs. Moore, but alleging that she knew about the prior mortgage when the one to her was executed and delivered. The answer continued and set out fully the prior foreclosure suit (foreclosing all right, title and interest of the appellees) and the manner and method of the constructive service had on these appellees by publication. The answer also set out fully a prior suit instituted by these appellees to foreclose this same mortgage, showing a dismissal of this suit at the instance of the appellants after the same had been allowed to lie dormant in the court for some six years, dismissal being for lack of prosecution. Further, the answer set out certain improvements placed on the premises by the defendant, Municipal Bond & Mortgage Corporation, after they had purchased the property from Cone Brothers Construction Company, and averred a prior lien for these improvements; also averred that the appellees had been guilty of laches to such an extent that they are barred from asserting their lien prior to that for the improvements on the property.

The Court struck certain portions of the answer and the defendants filed an amendment to their answer, setting out the same defenses more fully. Again, the court struck the amendment to the answer and this appeal is taken from that order of the court.

There are several questions presented to this court. We shall dispose of them in order.

The first question presented is the validity of the service had against appellees in the prior foreclosure suit. It is contended by appellees that the affidavit, upon which the order of publication is based, was defective in that the allegations therein were not adequate to give the court jurisdiction of the parties. This contention is not sound. The statute governing such service (Section 4895, C.G.L.1927) states:

'Whenever the complainant, his agent or attorney, shall state in a sworn bill or affidavit, duly filed, the belief of the affiant that the defendant is a resident of a State or country other than this State, specifying as particularly as may be known to affiant such residence, or that his residence is unknown, or that, if a resident, he has been absent more than sixty days next preceding the application for the order of publication, and that there is no person in the State the service of a subpoena upon whom would bind such defendant, or that he conceals himself so that the process cannot be served upon him, and further states the belief of the affiant as to the age of the defendant being over or under twenty-one years, or that his age is unknown, the judge or clerk of the court in which such bill shall have been filed shall make an order against the defendant requiring him to appear to the bill upon a day to be fixed by the order * * *.'

We have previously held that the statute contemplates four separate and independent situations under which such service is allowed. That is, we have held that the statute is drawn in the disjunctive and any one of the four alternative situations recited is sufficient for the issuance of the order of publication. Balan v. Wekiwa Ranch, 97 Fla. 180, 122 So. 559. The order of publication here questioned (containing the same allegations as the affidavit on which its issuance was based) reads:

'It appearing by affidavit filed in the above styled cause, that the places of residence and post office addresses of Malinda W. Moore, and husband, A. J. Moore, J. E. McGlamery, doing business as Mirror Lake Cement Company, J. S. Tilden, E. T. Randall and B. L. Chamberlain, and each of them, are unknown, although diligent search and inquiry has been made for the same * * * and that said Malinda W. Moore, and husband, A. J. Moore, * * *, and each of them, are over the age of twenty-one (21) years * * *.'

The allegations in this order that the residence of the defendants 'are unknown, although diligent search and inquiry has been made for the same'; and, 'that said Malinda W. Moore, and husband, A. J. Moore, * * *, and each of them, are over the age of twenty-one (21) years' are sufficient to constitute the basis for a valid constructive service. Balan v. Wekiwa Ranch, supra. While the chancellor may, at the time such service is made returnable, require certain proof of good faith, diligence and such like on the part of the party resorting to this type of service; such is not...