Gibbens v. Pickett

• Decision Date: 12 January 1893
• Citation: 12 So. 17,31 Fla. 147
• Parties: GIBBENS v. PICKETT.
• Court: Florida Supreme Court

12 So. 17

31 Fla. 147

GIBBENS v. PICKETT.

Florida Supreme Court

January 12, 1893

Appeal from circuit court, Duval county; James M. Baker, Judge.

Bill by T. D. Gibbens against Joseph L. Pickett to foreclose a mortgage. A motion to set aside a decree of foreclosure pro confesso was sustained, and plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

A return of service upon a subpoena in chancery, signed by a deputy sheriff in his own name, without disclosing the name of his official principal for whom he acted as deputy in making the service, is a nullity, and furnishes no evidence that the court from which the process issued acquired that jurisdiction over the person of the party purported to have been served as would warrant it in entering against him a decree, either pro confesso or final.

COUNSEL W. B. Owen, for appellant.

C. P. &amp J. C. Cooper, for appellee.

OPINION

TAYLOR J.

T. D Gibbens, the appellant, as assignee of a mortgage made by J L. Pickett, the appellee, to A. H. Hudson and L. Bonnell filed his bill on the 2d of April, 1887, in the circuit court of Duval county, against Pickett, the mortgagor, to foreclose the same. Subpoena in chancery to the defendant, Pickett, was issued on the day the bill was filed, returnable to rule day in May, 1887, and the same was filed in the clerk's office on April 15, 1887, with the following return of service indorsed thereon: 'Received this subpoena April 2, 1887, and served the same April 9, 1887, by delivering a true copy thereof, in the county of Duval, to the within-named Joseph L. Pickett, and at the same time exhibiting to him this original writ. E. J. Murphy, Deputy Sheriff.' The defendant did not appear, demur, plead, or answer, and on the rule day, June 6, 1887, at complainant's request, decree pro confesso was entered by the clerk in the proper order book. On the ex parte application of the complainant, an order was made, June 18, 1887, referring the cause to a special master to take testimony and report the amount due on the mortgage. Testimony was taken before the master ex parte the complainant, and the master made his report, finding $128.24 to be the amount due for principal and interest on the mortgage, and for attorneys' fees for the foreclosure thereof. On the 27th of August, 1887, final decree of foreclosure was rendered, in which the same special master who took the testimony was authorized, as such, to sell the mortgaged property. On the 5th of September, 1887, the defendant, Pickett, by his counsel, served the complainant's solicitors with notice that on the 6th of September, 1887, he would move the court to set aside and vacate the decree pro confesso, and final decree, and for leave to plead to the bill, on the following grounds: (1) The subpoena in said cause was not served, or returned as served, upon defendant. (2) There was no decree pro confesso entered in said cause by the clerk. (3) No proper proof was made of the alleged cause of action and amount claimed before the master. (4) Defendant has a defense upon the merits to said cause, as shown by affidavit filed. This motion was accompanied by a petition and affidavit of the defendant for the vacation of said decree pro confesso and final decree, stating that said subpoena had never been served upon him, and that he had no knowledge of the existence of the suit until he saw the mortgaged property advertised in a newspaper for sale; that he did not owe the amount decreed, and had credits to which he was entitled that had not been allowed. At the hearing of this motion the following order was made, on September 6, 1887: 'This cause came on to be heard on within petition, and, having been argued by counsel, it is ordered that the decree pro confesso and final decree in this cause be vacated and set aside, and that defendant do plead, answer, or demur to the bill in this cause within ten days from this date. Jas. M. Baker, Judge.' From this order the complainant took his appeal to this court.

It is asserted in the appellant's petition of appeal, and reiterated in his briefs, that the ground upon which the court below made the order appealed from was that the return of service of the subpoena in the cause, as made by the deputy...