Ennis v. Giblin

• Decision Date: 13 May 1941
• Citation: 147 Fla. 113,2 So.2d 382
• Parties: ENNIS v. GIBLIN et al.
• Court: Florida Supreme Court

2 So.2d 382

147 Fla. 113

ENNIS v. GIBLIN et al.

Florida Supreme Court

May 13, 1941

Rehearing Denied June 6, 1941.

Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

Edward H Brown, of Miami, for appellant.

Vicent C Giblin, Fred Pine, and W. W. Colson Jr. all of Miami, and Whitfield & Whitfield, of Tallahassee, for appellees.

BUFORD, Justice.

Appeal brings for review final decree dismissing bill of complaint.

The record shows that on October 31, 1938, appellees filed suit in the Civil Court of Record of Dade County, Florida, against the appellant to recover sums of money alleged to be due the plaintiffs in that suit for legal services rendered the defendant with interest and costs. That attachment affidavit was filed in that cause and the interest of the defendant in certain lands was levied upon under writ of attachment. That the defendant was a nonresident of the State of Florida and that notice of the attachment was served (a) by publication as required by law, (b) that notice was also served by a copy of such notice being served on the defendant by the sheriff of the county where the defendant resided in Maryland and (c) by notice of the institution of the suit and service of attachment being transmitted to defendant by registered United States mail.

The defendant failing to appear, default was entered against him on December 6th, 1938, and thereafter on December 28th, 1938 one of the Judges of the Civil Court of Record entered a final judgment against the defendant in said suit for the sum of $800 plus $23 as interest and the further sum of $48.60 as costs.

The record shows that the court had jurisdiction of the parties in the attachment proceeding and that the judgment was regular on its face.

The record also shows that the defendant had notice of the suit and opportunity to be heard, of which he did not avail himself. That after judgment, execution was issued and levied by the Sheriff upon the same property and the property was sold to Ricardo Properties, Inc., a Florida Corporation. A writ of assistance was issued and the purchasers at the Sheriff's sale were put in possession of the property.

Within ten days after the filing of the bill of complaint in this case the defendants answered, including in their answer motion to dismiss.

Complainant moved the court for decree in his favor on bill and answer. This motion was denied.

The answer denied the material allegations of the bill and in addition thereto the defendants set up allegations which were sufficient to constitute a complete defense in avoidance of the relief prayed for in the bill.

The rule is that when a case is heard on bill and answer all the averments of the answer are to be taken as true. See Godwin v Phifer, 51 Fla. 441, 41 So. 597 and cases there cited; M. F. S. Co. v. J. Ray Arnold Cypress Co., 115 Fla 152, 155 So. 118.

The court entered its decree dismissing the bill of complaint.

In Lucy v. Deas et al., 59 Fla. 552, 52 So. 515, 516, it was held:

'Where the court is legally organized, and has jurisdiction of the subject-matter, and the adversary parties are given an opportunity to be heard by the actual or constructive service on them of notice of the litigation as required by law, any errors or irregularities, or even wrongdoing, in the proceedings, short of an illegal deprivation of an opportunity to be heard, will not render the judgment void.'

In the case of Sawyer v. State, 94 Fla. 60, 113 So. 736, 743, we held:

'The general doctrine as to the finality of judgments after the expiration of the term of rendition is well stated in the case of Einstein...