Fiehe v. R.E. Householder Co.

• Decision Date: 15 May 1929
• Parties: FIEHE v. R. E. HOUSEHOLDER CO.
• Court: Florida Supreme Court

125 So. 2

98 Fla. 627

FIEHE v. R. E. HOUSEHOLDER CO.

Florida Supreme Court

May 15, 1929

On Rehearing Oct. 17, 1929.

On Second Petition for Rehearing December 2, 1929.

En Banc.

Error to Circuit Court, Hillsborough County; W. T. Harrison, Judge.

Suit by Matilda P. Fiehe, an insane person, by her guardian and next friend, Frank A. Bell, against the R. E. Householder Company a corporation. Judgment for defendant, and plaintiff brings error. Affirmed on rehearing.

Buford J., dissenting.

Strum and Brown, JJ., dissenting.

(Headnotes to accompany opinion per Strum, J.)

On Rehearing.

Syllabus by the Court

SYLLABUS

Rules of law applicable to guardians' sales of minors' property apply to guardians' sales of insane persons' property. The rules of law applicable to sales of property belonging to minors by their guardians are applicable to sales of property belonging to insane persons by their guardians.

Final chancery decree or order is ineffective until signed by court and recorded as directed by statute (Rev. St. 1892, § 1448). A final decree or order in chancery must be signed by the court and recorded, as directed by Rev. St. 1892, § 1448 before it acquires force and effect.

Guardian's conveyance of insane person's property before order appointing him was recorded did not convey title (Acts 1895 c. 4359; Rev. St.1892, § 1448). Conveyance of insane person's property by guardian, appointed under Acts 1895 c. 4359, by order, not recorded as required by Rev. St. 1892 § 1448, until after guardian's sale, did not convey title, which remained vested in ward.

Nunc pro tunc decree cannot be resorted to for purpose of validating void proceeding. Where party dies after submission of cause, a revivor may be obviated by entering a decree nunc pro tunc as of date of hearing, but such decree presupposes a decree previously passed or allowed and not entered or a cause under advisement after hearing, and cannot be resorted to for purpose of validating a void proceeding.

Nunc pro tunc decree only makes decree valid as between parties, and is in force only from time of actual entry. A nunc pro tunc decree is not given effect for any other purpose than that of making decree valid as between parties, and is considered in force only from time when it is actually entered.

Failure to record equity order or decree in chancery order book renders subsequent proceedings thereon irregular, not void, hence reversible only on direct attack (Comp. Gen. Laws 1927, § 4948; Acts 1927, c. 11922). Failure to record an order or decree in equity in the chancery order book, as required by section 4948, C. G. L. 1927, renders any subsequent proceeding had thereon irregular and erroneous, and subject to reversal upon direct attack (except as otherwise provided by chapter 11922, Acts of 1927), but subsequent proceedings had upon such an unrecorded decree or order are not void so as to rendere them amenable to collateral attack.

Nunc pro tunc order to record order appointing guardian of insane person as of date before guardian's sale cured irregularity and validated proceedings as against collateral attack (Acts 1895, c. 4359; Rev. St. 1892, § 1448, now Comp. Gen. Laws 1927, § 4948). Acting pursuant to chapter 4359, Acts of 1895, a circuit judge on July 14, 1898, duly appointed a guardian for the estate of a person who had been previously adjudged insane by competent authority. The order of appointment was filed in the clerk's office on that date. The procedure leading up to said order was regular. Through inadvertence, the order was not recorded, as required by section 1448, Rev. St. 1892. By an ex parte order of the same court made on December 27, 1907, without notice to the ward it was ordered that the order appointing the guardian be recorded nunc pro tunc as of the date it was made and filed in the clerk's office. Upon a collateral attack, the purpose of which is to invalidate a sale of real estate belonging to the insane ward, made by the guardian during the interim between the making of the order of appointment and its recording nunc pro tunc, it is held that the failure to record the order did not render the same void, but was a mere irregularity which was effectively remedied, at least as against collateral attack, by recording the order nunc pro tunc in the manner stated, no rights of third parties having intervened, no fraud being charged, and there being no showing of prejudice to the rights of the insane ward.

As respects public generally, inquisition proceeding in which one is adjudged insane is in rem. As to the public generally, and in so far as the public interest is affected, an inquisition proceeding in which a person is adjudged insane is in the nature of a proceeding in rem.

As respects alleged incompetent, inquisition is in personam in which due notice and opportunity to be heard must be afforded incompetent. As to the person whose sanity is in question, an inquisition in lunacy is a proceeding in personam, in which due notice and an opportunity to be heard must be afforded the subject of the inquisition.

Proceeding to sell property of one adjudged insane is in rem, property involved constituting res. A proceeding for the sale of property of one who has been previously adjudged by competent authority to be a lunatic, or insane, is a proceeding in rem, the property involved constituting the res.

Competent adjudication of lunacy observing due process requirements gives court jurisdiction over lunatic's property within court's territorial jurisdiction. When there has been a competent adjudication of lunacy, in which the requirements of due process have been observed as to the person whose sanity is in question, jurisdiction over the property of the lunatic located within the territorial authority of the court is complete, either for custody, for management, or for sale.

Guardian's proceeding to sell insane ward's land is not proceeding adverse to ward. A proceeding by a guardian for the sale of lands belonging to his insane ward is not a proceeding adverse to the ward.

One duly adjudged insane is not entitled to notice and apportunity to be heard as adverse party in guardian's proceeding to sell realty. An insane ward, having been afforded the benefit of due process in the proceeding by which she was adjudged insane, is not entitled to notice and an opportunity to be heard as an adverse party in a proceeding by the guardian for the sale of her real estate, as would be the case where a personal judgment, or one adverse to the interest of the ward, is to be rendered.

Nunc pro tunc order to record order appointing guardian as of date before guardian's sale held not denial of due process to insane ward (Acts 1895, c. 4359; Rev. St. 1892, § 1448, now Comp. Gen. Laws 1927, § 4948). A circuit judge on July 14, 1898, appointed a guardian of the estate of a person who had been previously adjudged insane by competent authority. The order of July 14, 1898, duly appointing the guardian was filed in the clerk's office, but was not recorded in the minutes of the court, as required by section 1448, Rev. St. 1892. On October 5, 1898, the guardian, acting pursuant to the unrecorded order of appointment, sold certain real estate of his ward, the sale having been authorized by the county judge pursuant to statutory proceeding instituted for that purpose by the guardian in behalf of the ward. On December 27, 1907, the circuit judge on an ex parte hearing, in which the ward was not represented, ordered the original order appointing the guardian to be recorded nunc pro tunc as of the date it was made. Held, no denial of due process to the ward, the sale proceedings not being adverse to the ward, and the ward having been afforded the benefit of due process in the proceeding by which she was adjudged insane.

Inquiry on collateral attack on judgment is confined to jurisdictional infirmities rendering judgment void; judgment of competent court cannot be collaterally impeached for mere irregularity or error, and rule applies to courts of limited jurisdiction. When an existing judicial order or judgment is attacked collaterally, the scope of the inquiry is confined to jurisdictional infirmities which would render void the judgment under attack. The judgment of a court of competent jurisdiction as to both subject-matter and parties cannot be collaterally impeached for mere irregularity or error. This rule applies as well to courts of limited or special jurisdiction as to courts of general jurisdiction.

County judge's jurisdiction to authorize sale of insane persons' realty is not wholly statutory, but procedure to be followed in exercise thereof is wholly statutory (Const. art. 5, § 17; Rev. St. 1892, § 1924, now Comp. Gen. Laws 1927, § 5897). The jurisdiction of a county judge to authorize the sale of real property belonging to insane persons is not wholly statutory. The procedure, however, which is to be followed in the exercise of that jurisdiction is wholly statutory.

County court in acting on petition to sell insane person's realty acts as court of general jurisdiction; jurisdiction of county court on petition to sell insane person's realty is not that of court of general jurisdiction proceeding in accordance with course of common law (Const. art. 5, § 17). While the county judge, in acting upon petitions to sell real estate belonging to insane persons, acts as a court of general jurisdiction, his jurisdiction in such matters is not that of a court of general jurisdiction proceeding according to the course of the common law.

As against collateral attack, county court's jurisdiction over sale of insane person's realty must affirmatively appear by his record (Const. art. 5, § 17; Rev. St. 1892, §§ 1924, 2111, now Comp Gen. Laws...