Flinn v. Lisenby

• Decision Date: 07 August 1931
• Citation: 136 So. 599,102 Fla. 777
• Parties: FLINN v. LISENBY.
• Court: Florida Supreme Court

136 So. 599

102 Fla. 777

FLINN v. LISENBY.

Florida Supreme Court

August 7, 1931

En Banc.

Suit by J. S. Lisenby, receiver for the East Florida Savings & Trust Company, against Zeolide W. Flinn. From a final decree for the complainant after a decree pro confesso was entered against the defendant, and from subsequent orders prior to the entry of the appeal, defendant appeals.

Decree modified, and, as modified, affirmed.

Syllabus by the Court.

SYLLABUS

The defendant could not ignore the summons of the court regularly issued and served upon her and after final decree complain that the service was irregular or that the bill of complaint which she was required to answer was demurrable. By her failure to appear and plead, she waived her rights to contest such irregularities, if any irregularities there be, as claimed.

Where the bill of complaint did not wholly fail to state a cause of action, a decree based upon the bill of complaint to which no demurrer was filed will not be disturbed on appeal.

There is a distinction between two cases, one where the individual is served with process directed to him or her in his, or her individual capacity to answer in a suit on an obligation for which such person in his, or her, individual capacity is liable, as in this case, and a suit in which process is sued out against several named persons, 'partners doing business,' etc., in which process applies only to named individuals as such, as was the case in Speight v. Horne Judge, et al., filed April 4, 1931, reported 133 So. 574.

If the process is directed to one as an individual and is properly served, the court acquires jurisdiction of that one as an individual and may not enter judgment upon such service against that one in a representative capacity, and vice versa. But, if process is issued and served upon one as an individual, and the pleadings show that such one is liable to the party maintaining the suit, the court acquires jurisdiction of the one upon whom service is made, and, if the bill of complaint or declaration does not wholly fail to state a cause of action which may be maintained by the plaintiff, the judgment or decree will not be reversed because it appears that the declaration or bill of complaint might have been held bad on demurrer. Appeal from Circuit Court, Putnam County; Geo. Wm. Jackson, judge.

COUNSEL

Hilburn, Merryday & Dowda, of Palatka, for appellant.

Julian C. Calhoun and Richard Ervin, Jr., both of Palatka, for appellee.

OPINION

BUFORD C.J.

We find sufficient substantial evidence to support the decree in this case. Therefore the same will not be reversed because of alleged error of the chancellor in his findings of fact upon which the decree is based. The caption of the suit in the lower court was 'J. L. Lisenby, Receiver for East Florida Savings & Trust Company, a banking corporation, complainant, v. Leolide W. Flinn, a widow, defendant.' The first paragraph of the bill was as follows:

'Comes now your Orator, J. S. Lisenby, the duly appointed and acting receiver for the East Florida Savings & Trust Company, a Corporation formerly doing a banking business at Palatka, Putnam County, Florida, and brings this, his bill of complaint, against Zeolide W. Flinn, a widow, who resides at Palatka, County of Putnam and State of Florida, and, thereupon, your orator respectfully represents and shows unto your Honor as follows:'

Alias summons in chancery was as follows:

'The State of Florida to Zeolide W. Flinn, Widow, Greetings:

'You are hereby required to appear before the Circuit Court for the Twenty-fifth Judicial Circuit of Florida, County of Putnam, on the 3rd day of November A. D. 1930, at the Court House of said County, to answer a bill of complaint filed against you in said Court by J. S. Lisenby, Receiver for East Florida Savings & Trust Company, a Banking Corporation, (Mortgage Foreclosure) and then and there to receive and abide by such judgment and decree as said Court shall have considered in this behalf. And this you are not to omit; upon pain of judgment by default being entered against you.

'Witness, the Honorable Geo. Wm. Jackson, Judge of said Court and the Seal of this Court, at the City of Palatka, Florida, this 23rd day of October, A. D. 1930.

'[Official Seal.]

'W. A. Williams, Jr., Clerk.'

Upon which the following return was indorsed:

'Received October 24, 1930, and executed the within writ by delivering a true and correct copy of this original writ to the within named defendant, Zeolide W. Flinn, widow, and at the same time reading to her this the original writ and informing her of the contents thereof.

'Done in Putnam County, Florida, this October 24, 1930.

'P. M. Hagan, Sheriff

'By L. S. Johnson, Jr., Deputy Sheriff.'

Decree pro confesso was entered against defendant for failure to appear. A master was appointed to take testimony. Testimony was taken and a report was made. Final decree was entered on the 3d day of December, 1930. Appeal was taken from final decree and subsequent orders prior to the entry of appeal on the 6th day of April, 1931.

The decree finds: 'And that there is due from the defendant Zeolide W. Flinn, a widow, to the complainant, J. S. Lisenby, Receiver for the East Florida Savings & Trust Company, a banking corporation, the following.' Then follows the adjudications of several amounts due.

Appellant contends that, inasmuch as she was served to appear and answer a bill of complaint filed by...