Klinger v. Milton Holding Co.

• Citation: 136 Fla. 50,186 So. 526
• Parties: KLINGER v. MILTON HOLDING CO. et al.
• Decision Date: 10 March 1938
• Court: United States State Supreme Court of Florida

186 So. 526

136 Fla. 50

KLINGER v. MILTON HOLDING CO. et al.

Florida Supreme Court, Division B.

March 10, 1938

On Rehearing Jan. 24, 1939.

Further Rehearing Denied February 28, 1939.

Bill in nature of a bill of review by P. W. Klinger against the Milton Holding Company and another to set aside a final decree in a chancery suit with deed or conveyances based thereon and for an accounting. From an order dismissing the bill with prejudice, plaintiff appeals.

Reversed and remanded with directions.

On Rehearing. Appeal from Circuit Court, Dade County; Worth W Trammell, judge.

COUNSEL

John J Lindsey, of Miami, and Kenneth Ballinger, of Tallahassee, for appellant.

Stapp Gourley, Ward & Ward and Edward E. Fleming, all of Miami, for appellees.

OPINION

CHAPMAN Justice.

This is an appeal from an order dated September 16, 1936, entered by the circuit court of Dade county, Fla., dismissing with prejudice, a bill in the nature of a bill of review to impeach, annul, and set aside a final decree entered by the circuit court of Dade county, Fla., in a chancery suit therein previously pending No. 32344, with deed or conveyances based thereon, and for an accounting. All parties claiming under each of said instruments were made parties to the bill of review. This court approved a similar suit in the case of Yager v. North & South A. R. Phosphate Co., 82 Fla. 38, text 44, 45, 89 So. 340, 342, when it was said:

'This suit was brought to annul the proceedings and decrees in another suit decided in the same court. The bill was therefore not an original bill. The subject of the litigation had its origin and source in the controversy involving the partition of the lands between the two corporations. The facts alleged in the bill in the instant case appear not to have arisen subsequently to the former litigation, but were then available to a diligent person interested in the controversy. It is a bill to reverse a decree rendered in the partition suit. It is therefore a bill of review, but it does not rest upon error apparent, nor upon new matter arising after the rendition of the decree, but attacks the decree upon the ground of fraud alleged to have been perpetrated by counsel in the cause and manipulations of officers of one of the corporations interested in the lands; but no leave was granted by the court nor asked for by complainant to file the bill, so far as the record discloses. The allowance of a bill of review is not a matter of right in the parties, but rests in the sound discretion of the court, to be exercised cautiously and sparingly, and under circumstances that demonstrate it to be indispensable to the merits and justice of the cause. See 10 R.C.L. 575.'

See Taylor v. Day, 102 Fla. 1006, 136 So. 701; State ex rel. Reynolds v. White and Florida Central & P. Ry., 40 Fla. 297, text 310, 24 So. 160; Mattair v. Card, 19 Fla. 455.

Service by publication was had on the defendant P. W. Klinger, appellant here, and is the basis for the final decree dated December 7, 1931, sought to be impeached, set aside, and decreed null and void in this bill of review. The order of publication as made by the clerk of the circuit court of Dade county, Fla., was predicated on the following affidavit:

'Before me, a Notary Public of the State of Florida at Large, personally appeared L. R. KING, who after being first duly sworn, upon his oath deposes and says:

'That he is Agent and Attorney for the above named Complainant and as such is duly authorized to make this Affidavit, and makes the same for and on behalf of said Complainant; that it is the belief of the Affiant and the complainant that the Defendants, Arthur E. Williams, and if married, ----- Williams, his wife, Julian E. Gray, and if married, ----- Gray, his wife, P. W. Klinger, and if married ----- Klinger, his wife, and Cora H. Welch, unmarried, or if married, her husband, are nonresidents of the State of Florida, and are residents of a State or Country other than the State of Florida, and that the place of residence of said defendants is unknown. Affiant further says that he believes that said Defendants are over the age of twenty-one years, and that there is no person in the State of Florida the service of a Subpoena upon whom would bind said defendants.

'Affiant further says that the fefendant, Smitz & Emmons, Inc. is a Florida corporation, and that there has been filed in this cause a Certificate of the Secretary of State of the State of Florida, certifying that said corporation is organized and existing under the laws of the State of Florida, and that the said corporation has not complied with provisions of Section 57, chapter 10095, Laws of Florida 1925, nor with sections 4253 or 4359 of the Compiled General Laws of the State of Florida, 1927, relative to designating an office or place of business or domicile for the service of process and naming an agent to accept service; that after diligent search, the Sheriff of Dade County, Florida, has failed to find any officer or agent of the said corporation in Dade County, Florida, upon whom process could be served, and has so returned the Writ herein; that there is no person in the State of Florida the service of a Subpoena upon whom would bind the said Defendant corporation.'

The above affidavit states that affiant believes the P. W. Klinger, a defendant therein, at the time of making the affidavit was a nonresident of the state of Florida and at the time was a resident of a state or country other than the state of Florida, and that his place of residence was unknown. The transcript of the record shows that L. R. King, at the hearing before the master, in part testified, as follows:

'Q. In that affidavit, Mr. King, you state that the plaintiff in this present suit, P. W. Klinger, and his wife described therein as ----- Klinger, are nonresidents of the State of Florida according to your belief, and their residence is unknown. I will ask you to state what investigation or inquiry you made, if any, prior to the making of that affidavit?

'A. I first had an abstract or search of the record made by J. W. Blow embracing some ten or twelve lots which are involved in the suit to foreclose certain tax certificates. As I recall at this time, from that abstract I made an examination of the various conveyances as they appeared in the abstract, in deed and mortgage books in the clerk's office, Dade county, Florida, and in addition to that, as I recall, I also examined to determine whether or not, or rather, to whom those conveyances that appeared in the abstract or search of title were delivered from the clerk's office. I also examined the then current city of Miami directory to determine the address or residence of Mr. Klinger and I also examined the current telephone directory in the city of Miami to determine the residence or address of Mr. Klinger. As I recall, the bill was filed, that is the bill establishing the case in which this affidavit was filed, in the early part of the year 1931. * * *

'Q. Did you know that there was in the office of the tax collector a record or writing which purported to show that place of residence of P. W. Klinger as 235 Grafton avenue, Dayton, Ohio?

'A. I did not.

'Q. Did the clerk of the circuit court or the tax collector advise you that there were duplicate tax receipts issued to P. W. Klinger, which receipts showed the place of residence to be 235 Grafton Avenue, Dayton, Ohio?

'A. No. * * *

'Q. As I understand you, you didn't entirely upon the information contained in the abstract but investigated instruments recorded in what is known as the public records of the circuit court clerk's office?

'A. As I recall I was able to find a certain number of defendants in the city directory and in the telephone book who were local. Those I could not find through that source I made a list of, just how many I do not recall, and made an examination of those records in the clerk's office with reference to those defendants whom I was unable to determine were residents from examination of the directory and telephone book.

'Q. Do you have at this time any independent recollection of having examined page 232 of Deed Book 681 of the circuit court clerk's office?

'A. At the time the affidavit was filed I do not, Mr. Lindsey.

'Q. To refresh your recollection, I exhibit to you Plaintiff's Evidentiary Exhibit No. 2, a certified copy of the deed recorded at page 232 of Deed Book 681 of the Public Records of Dade county, Florida, and will ask you if that causes you to recall whether or not you examined that deed.

'A. I don't recall of having seen this deed among the records at the time the affidavit was made.

'Q. If you failed to examine that deed it was an oversight in your intention of examining all the records?

'A. If it was of record at that time, yes.

'Q. Do you recall just where you obtained the information from which you based your allegation in the bill of complaint in Chancery Cause No. 32344-C that P. W. Klinger and if married ----- Klinger, his wife, had or claimed some interest in lot 3, block 13, Beach View addition?

'A. Apparently that was taken, and I am quite sure it was taken, from the search of title or abstract which I had prepared on that particular lot or lots along with the other lots involved in the suit.

'Q. Then, to the best of your recollection you did not as to that particular lot 3 of block 13, Beach View addition, being the property involved in this case, go further than the information contained in the abstract and city and telephone directories.

'A. Rather, on the contrary, as I recall, I made an examination of the public records to determine the residence of Mr Klinger along with other defendants. Whether or not I examined that particular deed, or overlooked...