Kellogg-citizens Nat. Bank of Green Bay, Wis. v. Felton

• Decision Date: 19 November 1940
• Citation: 145 Fla. 68,199 So. 50
• Parties: KELLOGG-CITIZENS NAT. BANK OF GREEN BAY, WIS. v. FELTON.
• Court: Florida Supreme Court

199 So. 50

145 Fla. 68

KELLOGG-CITIZENS NAT. BANK OF GREEN BAY, WIS. v. FELTON.

Florida Supreme Court

November 19, 1940

Rehearing Denied Dec. 10, 1940.

En Banc.

Error to Circuit Court, Escambia County; L. L. Fabisinski, Judge.

Action by the Kellogg-Citizens National Bank of Green Bay, Wis against Lillian D. Felton and her husband upon notes. Judgment by default was rendered against both defendants and after death of the husband, the judgment against the named defendant was quashed upon motion, and plaintiff brings error.

Affirmed.

BROWN J., dissenting.

On Rehearing.

COUNSEL

Watson & Pasco & Brown and Richard H. Merritt, all of Pensacola, for plaintiff in error.

Coe & McLane, of Pensacola, for defendant in error.

OPINION

WHITFIELD Presiding Justice.

It appears that several promissory notes for borrowed money were executed and delivered in the State of Wisconsin, all being signed by the married woman defendant in error, herein, and some of the notes were also signed by her husband, both husband and wife being then domiciled in the State of Wisconsin. In 1925 the husband and wife became domiciled in Florida, remaining therein. Renewal notes for the borrowed money appear to have been executed in 1926 in Florida with a Wisconsin date line, and delivered in Wisconsin while the husband and wife were domiciled in Florida. In 1929 an ordinary action on the renewal notes was brought in Florida against the husband and wife who were domiciled in Florida. Both defendants were personally served with process and both appeared in the cause by counsel. Judgment by default for not pleading was rendered against both defendants. On February 28, 1929, verdict and final judgment on the renewal notes against both defendants were rendered in favor of the plaintiff. Later the husband died in Florida survived by the widow, both being then domiciled in Florida. On motion of the widow, the court quashed the judgment as against the married woman, now a widow.

The following questions are presented by plaintiff in error:

'Question One

'Is it contrary to the public policy of Florida to enforce a contractual liability of a married woman upon a promissory note validly made and binding at the place and time of its execution, where there has been no change in the agreement save for an extension of the time of payment by renewal?

'Question Two

'Does the trial court have authority in its common law jurisdiction to vacate, quash and set aside a final judgment, not absolutely void, where it appears that no objection was made until approximately ten years after the expiration of the term during which the judgment was rendered?'

Copies of two of the notes are as follows:

'$200.00

Green Bay, Wis., April 22, 1926.

'Ninety Days after date for value we promise to pay to John Rose, Cashier or bearer at The Kellogg National Bank of Green Bay, Two Hundred Dollars, with interest at the rate of seven per cent. per annum until paid.

'Due July 21.

(s) M. S. Felton

'(s) Lillian D. Felton

Endorsed on back as follows: 'Pay to H. G. Freeman, Atty., or order, Kellogg-Citizens National Bank Green Bay, Wis., I. Torgerson, Ass't. Cashier.'

'$500.00

Green Bay, Wis., April 22, 1926.

'Ninety days after date for value received I promise to pay to John Rose, Cashier or bearer at The Kellogg National Bank of Green Bay, Five Hundred Dollars with interest at the rate of seven per cent. per annum until paid.

'Due Oct. 4.

(s) Lillian D. Felton

'Endorsed on the back as follows: Pay to Robert R. Freeman, Atty. or order Kellogg-Citizens National Bank Green Bay, Wis., I. Torgerson, Ass't Cash.'

Such promissory notes given for borrowed money appear to be valid and enforceable against the married woman in Wisconsin; but they are not valid or enforceable as promissory notes under the laws of Florida against the married woman as personal liabilities or obligations unless she is a free dealer under the laws of Florida. Nor do the notes given for borrowed money create a liability against the married woman for the payment of which her separate property in Florida may be subjected under sections 1 and 2, Article XI, of the Florida Constitution as to matters of substantive law and not merely procedure. See Hodges v. Price, 18 Fla. 342; Virginia-Carolina Chemical Co. v. Fisher, 58 Fla. 377, 50 So. 504; Fidelity & Casualty Co. v. Long, 94 Fla. 547, 114 So. 249; Lloyd v. Cooper Corp., 101 Fla. 533, 134 So. 562. See also Citizens Bank & Trust Co. v. Smith, 97 Fla. 601, 121 So. 900.

There has been quoted to us the following as a statute of the State of Wisconsin:

Women shall have the same rights and privileges under the law as men in the exercise of suffrage, freedom of contract, choice of residence for voting purposes, jury service, holding office, holding and conveying property, care and custody of children, and in all other respects.' Wisconsin Statutes, 1921, Sec. 6.015.

There is no statute of that nature in the State of Florida. The common law disabilities of married women are only partially removed in this State. The public policy of the State on this subject in Florida is controlled by the constitution and pertinent statutes of the State.

On January 8, 1940, the surviving defendant, Lillian D. Felton, moved the court in which judgment was rendered: 'to set aside and quash the final judgment herein rendered against her and for ground of such motion says that she was at the time of the rendition of the said judgment and theretofore for a long time had been a married woman, the wife of M. S. Felton, and remained such until the death of the same M. S. Felton on December 14, 1938, and that at the time of the making of the promissory notes to the plaintiff herein upon which this judgment is founded, she was a resident of the State of Florida and executed said notes in this State, and that said promissory notes were given solely for money borrowed by and for the benefit of petitioner's husband, M. S. Felton, and the same did not inure to the benefit of her separate estate and at the time of the said transaction the said notes were invalid and ineffective under the laws of the State of Wisconsin as well as under the laws of the State of Florida, wherefore petitioner prays that said judgment may be annulled as aforesaid.'

A demurrer to the motion to quash the final judgment was overruled.

By answer to the motion to quash the final judgment, it is averred:

'1. Plaintiff admits that at the time of the execution of said notes said Lillian D. Felton was the wife of M. S. Felton, her co-defendant in said suit, and remained the wife of said M. S. Felton until his death as alleged.

'2. Plaintiff is without knowledge as to whether or not the said Lillian D. Felton was a resident of the State of Florida at the time of the execution of the promissory notes mentioned and demands proof thereof.

'3. Plaintiff denies that the promissory notes were given solely for money borrowed by and for the benefit of said M. S. Felton and denies that the same did not inure to the benefit of her separate estate.

'4. Plaintiff denies that said notes were invalid and ineffective to bind her under the laws of the State of Wisconsin and demands proof thereof.

'5. Plaintiff alleges that the notes referred to, to-wit notes Nos. 39762, 39861, 40123, 41143, were delivered to the plaintiff in the city of Green Bay in the State of Wisconsin.

'6. That said notes were renewals of previous notes executed by M. S. Felton and Lillian D. Felton, and Lillian D. Felton individually, which were executed by the defendants while they were citizens and residents of the State of Wisconsin and delivered to the plaintiff at that time.

'7. That at the time of the execution of the original notes, of which the above-described are renewals, the petitioner had the legal power and capacity to contract and bind herself for the execution of said notes and that said original notes and the renewals thereof constitute a valid and binding contract against her under the laws of Wisconsin and that the judgment rendered thereon is a valid and binding judgment.

'8. That credit was extended and moneys advanced to M. S. Felton and Lillian D. Felton jointly and to Lillian D. Felton individually on the financial strength and credit of said Lillian D. Felton.

'9. Plaintiff alleges that the proceeds of the original note for $500.00, of which No. 41143 is a renewal and a part of the proceeds of notes which were combined to make renewal note for $400.00, No. 39861, were deposited in the personal account of the petitioner, Lillian D. Felton.

'10. That the petitioner, Lilliam D. Felton, and M. S. Felton did not either jointly or severally within the time authorized by the laws of the State of Florida take and enter any appeal from said judgment referred to in said petition.'

Testimony was taken by the court.

The following order was made by the court:

'This cause coming on to be heard upon motion of defendant, Lillian D. Felton, to set aside and quash the judgment herein rendered against her and the same having been duly considered by the court upon said motion, plaintiff's answer thereto and evidence submitted by both parties and after hearing counsel, it is:

'Ordered and adjudged that said motion to quash be and the same is hereby sustained and that the said judgment against Lillian D. Felton, recorded in Minute Book Z at page 70 of the records of this court, in favor of The Kellogg National Bank of Green Bay, a corporation, for the sum of $1,562.50, besides costs, be and the same is hereby quashed and annulled and that the defendant, Lillian D. Felton, go hence without day.'

Writ of error was taken to such order or judgment.

The constitution of Florida contains the following:

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