Forest Inv. Co. v. Aultman

• Decision Date: 04 December 1920
• Citation: 80 Fla. 790,87 So. 43
• Parties: FOREST INV. CO. et al. v. AULTMAN.
• Court: Florida Supreme Court

87 So. 43

80 Fla. 790

FOREST INV. CO. et al. v. AULTMAN.

Florida Supreme Court

December 4, 1920

Rehearing Denied Feb. 8, 1921.

Suit by S. B. Aultman against the Forest Investment Company and another. Decree for complainant, and defendants appeal.

Reversed.

Syllabus by the Court

SYLLABUS

Judgment against maker and indorser of note not subject to collateral attack for misjoinder of parties. A judgment against the maker and an indorser of a note obtained in a county where one of them resides, after service of process as provided by law, is not void and subject to collateral attack.

Appeal from Circuit Court, Osceola County; C. O Andrews, judge.

COUNSEL

C. C Howell, of Jacksonville, for appellants.

Johnston & Garrett, of Kissimmee, for appellee.

OPINION

WHITFIELD J.

A bill was filed in the circuit court for Osceola county by Aultman against Forest Investment Company, a corporation, and L. H Ingram, sheriff, in which it is, in effect, alleged that the defendant corporation obtained a judgment against S. B. Aultman and H. W. Williams in an action brought in the civil court of record for Duval county upon promissory notes executed by Aultman as maker and indorsed by H. W. Williams; that Williams resides in Duval county, but Aultman resides in Osceola county; that the judgment has been recorded in Osceola county and an execution on the judgment issued by the civil court of record for Duval county is in the hands of the sheriff of Osceola county; that the judgment and execution are void because there was a misjoinder of parties defendant, because the defendant Aultman resides in Osceola county, and the cause of action did not accrue in Duval county and jurisdiction was not obtained of the person of Aultman. Relief against the lien of the judgment and execution was prayed. There was eventually a decree for the complainant and defendants appealed.

It is agreed that service of the summons issued in the assumpsit action was made upon Aultman in Osceola county and upon Williams in Duval county; that the notes were executed by Aultman as maker payable to C. T. Ansley; that Ansley indorsed them to Peninsular Naval Stores Company, which company indorsed them to Williams, who indorsed the notes of Forest Investment Company, the plaintiff in the action on the notes.

In the final decree it is held:

1. H. W. Williams was improperly joined as a defendant with S. B. Aultman in the suit in the civil court of record of Duval county, out of which this injunction suit arises, in that the said H. W. Williams was not an indorser at or before the execution and delivery of the promissory notes sued upon.

2. Jurisdiction in the said cause in the civil court of record was erroneously sought to be procured by this improper joining of H. W. Williams as a defendant with S. B. Aultman, and that the court did not therefore have jurisdiction of the person or subject-matter to said cause as against S. B. Aultman, and that therefore the judgment entered in said cause against S. B. Aultman was void and is not enforceable.

3. A void judgment against S. B. Aultman, when recorded in the county of Osceola, state of Florida, would constitute a cloud on property of said S. B. Aultman lying in said county.

While a void judgment may be subject to collateral attack, yet a judgment that may have been but was not adjudged erroneous in appropriate appellate proceedings may not be assailed collaterally. See 15 R. C. L. 835 et seq.

Misjoinder of parties defendant in a transitory action, where the defendants were all duly served with appropriate process, may be an irregularity in procedure that would render the judgment erroneous and subject to reversal in appellate proceedings; but such judgment may not be void and subject to collateral attack.

Where under the statute, a defendant in an action has the privilege of being sued in the county of his residence, and when...