Culclasure v. Consolidated Bond & Mtg. Co.

• Decision Date: 24 October 1927
• Citation: 94 Fla. 764,114 So. 540
• Parties: CULCLASURE v. CONSOLIDATED BOND & MORTGAGE CO. et al.
• Court: Florida Supreme Court

114 So. 540

94 Fla. 764

CULCLASURE v. CONSOLIDATED BOND & MORTGAGE CO. et al.

Florida Supreme Court, Division B.

October 24, 1927

Suit by the Consolidated Bond & Mortgage Company against Ruth Russell, otherwise known as Ruth Culclasure, who appeared by L. Kurz, her guardian ad litem, and others. From an order overruling a motion to quash service by publication defendant appeals.

Affirmed.

(Syllabus by the Court.) Appeal from Circuit Court Duval County; De Witt T. Gray, judge.

COUNSEL

Louis Kurz, of Jacksonville, for appellant.

Milam McIlvaine & Milam, of Jacksonville, for appellees.

OPINION

TERRELL J.

Appellee Consolidated Bond & Mortgage Company filed its bill in the circuit court of Duval county, Fla., to foreclose a mortgage on certain lands therein specifically described. Ruth Russell, otherwise known as Ruth Culclasure, was one of the defendants in said foreclosure suit, residing in the state of South Carolina; she was served by publication; was a minor and L. Kurz, one of the appellants, was appointed as her guardian at litem. The guardian ad litem filed his appearance and answer to the bill to foreclose, and moved to quash the service by publication on Ruth Russell. The motion to quash was overruled, and appeal was taken from that order.

The sole question raised in the motion to quash and brought here for our consideration is whether or not the Financial News of Jacksonville, Fla., in which service on Ruth Russell was made (by publication), is a newspaper within the meaning of the statutes of this state relating to constructive service on monresident, unknown, absent, or concealed defendants.

Our statute providing for constructive service (section 3111, Rev. Gen. Stats. of Florida 1920, as amended by chapter 10102, Acts 1925, and chapter 11364, Acts of 1925 [Extra Sess.]), and cognate statutes for similar purposes (sections 2835, 2942, 3113, 3114, 3763, Rev. Gen. Stats. of Florida, and chapter 8473, Acts of 1921, Laws of Florida), merely provide, in substance, that the order or notice to appear shall be published at stated intervals in some newspaper published in the county where the court is located, or where the sale takes place.

Appellant relies solely on Yaeger et al. v. Rose et al., 114 So. 373, decided by this court May 10, 1927, for reversal. In Yaeger v. Rose we held that the term 'newspaper,' as used in our constructive service statute, must have reference to some publication appearing at daily or weekly intervals reporting the news or happenings of local or foreign [CULCLASURE V CONSOLIDATED BOND & MTG CO 114 So. 540(1927)] interest, or both, such as social, religious, political, moral, business, professional, editorial, and other kindred subjects intended for the information of the general reading public. It may become necessary in the course of litigation to reach members of any profession, trade, craft, or calling by constructive service, hence the reason for publication in a newspaper of general circulation read and subscribed to by the public generally. Publication in any newspaper falling short of these requirements would not comply with the statute, nor meet the requirement of due process of law. Tylee v. Hyde, 60 Fla. 389, 52 So. 968; Hanscom v. Meyer, 60 Neb. 68, 82 N.W. 114, 48 L. R. A. 409, 83 Am. St. Rep. 507; Beecher v. Stephens, 25 Minn. 146; Lynch v. Durfee, 101 Mich. 171, 59 N.W. 409, 24 L. R. A. 793, 45 Am. St. Rep. 404; Williams v. Colwell, 14 A.D. 26, 43 N.Y.S. 720, 1167.

Predicated on the record before us, our conclusion in Yeager v. Rose was that the Daily Record, with a subscription of 350 or less, in a county of the population of Dade county, and devoted primarily to reporting the proceedings and transactions of the courts, reporting little or no news in which the general public would be interested, would, in our judgment, not be a newspaper in contemplation of our constructive service statute which must be construed in this connection with the due process clause of the state and federal Constitutions. Olsen v. Bibb Co., 117 Minn. 214, 135 N.W. 385, Ann. Cas. 1913D, 877; Times Printing Co. v. Star Publishing Co., 51 Wash. 667, 99 P. 1040, 16 Ann. Cas. 414, and note, page 417; 20 R. C. L. 201.

In the case at bar it is alleged and proved that the Financial News is published daily, except Sundays, in Jacksonville, Fla., on sheet paper, four page size; that it was first published in 1916, and has been published continuously since that time that it is entered as second class mail matter in the United States post office department; that it is designated by the United States District Court as the official publication for bankruptcy notices; that it carries editorials, occasionally music notes, and items of interest to those interested in music; a statement of the meetings of the courts of Duval county, Fla., the names of the courts, the names of the clerks; also a calendar of the circuit court of Duval county, Fla.; a list of the important buildings in Jacksonville, Fla.; a statement of residential locals; a list of assignments and satisfactions of mortgages, warranty deeds, and other legal documents filed for record; a list of the real estate agents in Duval county, Fla., called the 'Realtor's Directory,' with a history of the word 'realtor'; also a list of the attorneys in Jacksonville, Fla.; a statement of...