Laflin v. Gato
| Decision Date | 21 November 1906 |
| Citation | 42 So. 387,52 Fla. 529 |
| Parties | LAFLIN MURPHEY v. GATO. MURPHEY v. SAME. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Monroe County; Joseph B. Wall, Judge.
Suit by Eduardo H. Gato against Ellen P. Laflin and Charles A Murphey. Decree for plaintiff, and Murphey and Laflin, by her next friend, appeal separately. Decree reversed, with directions to dismiss bill.
Syllabus by the Court
An order for constructive service by publication, fixing the appearance day 52 days from the date of the order, is void under a statute prescribing that the date to be fixed should be not less than 30 nor more than 50 days.
In constructive service by publication, the certificate of the clerk should show the posting of a copy of the order at the door of the courthouse.
The answer of a guardian ad litem will not operate as an appearance for the infant, when the guardian was appointed before service by publication upon the infant had been perfected.
It is a serious irregularity to render a decree of foreclosure against one who acquires title after the filing of the bill who is brought into the proceedings only by an interlineation in the introductory part of the bill, with no statement as to his interest nor any prayers as against him, even though he may file a formal answer. The decree being reversed as to another appellant, it will also be reversed as to him.
COUNSEL Macfarlance & Glen (Norvin G. Maloney, on the brief), for appellants.
Fred. T. Myers (G. Bowne Patterson, on the brief), for appellee.
This is a suit instituted in the circuit court for Monroe county to enforce a mortgage lien by Eduardo H. Gato, the mortgagee upon certain wharf property in the city of Key West, which is owned in part by Mollie S. Laflin and Ellen P. Laflin, a minor, and in part by Charles A. Murphey. From the final decree separate appeals were entered by Charles A. Murphey and by Ellen P. Laflin, individually and by her next friend Mollie S. Laflin.
It is frankly admitted here upon the brief filed in behalf of the appellee that the service by publication upon the minor was fatally defective under the former decisions of this court. Among the departures from the statute (chapter 4129, p. 60, Laws 1893) providing for constructive service by publication may be mentioned the fact that the appearance day was fixed 52 days after the date of the order, while the statute says the date to be fixed in the order should be 'not less than thirty nor more than fifty days from the time of making the order,' where the defendant is a resident of the United States. It does not appear that the clerk posted a copy of the order at the door of the courthouse. Other variances from the statute are pointed out by appellant; and, with a warning that it is unsafe to change the verbiage of the statute in the matter of constructive service, we accept this confession of error upon the part of the appellee and agree the service was fatally defective.
The answer filed by the guardian ad litem did not operate against the infant as an appearance. The appointment was made 10 days after the order for publication; and, even had that order been perfect, the appointment was premature. The infant could not against her will and her interest be considered in court until the full period fixed in the order as allowed by the statute had elapsed and the full opportunities for the notice to be brought home to her had been accorded. She may be of such years of discretion as to be entitled to be heard upon the choice of the guardian or those naturally interested in her welfare might have a voice in the selection. The acts of a guardian ad litem appointed prematurely upon a defective constructive service cannot bind the infant, and as to her the decree was erroneous. As to prematurity of the appointment of the guardian, see Walker v. Hallett, 1 Ala. 379; Good v. Norley, 28 Iowa, 188, text 199; Crouter v. Crouter, 133 N.Y. 55, 30 N.E. 726.
As to Charles A. Murphey, we have stated he is the owner, the holder of the legal...
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Becker v. Hopper
... ... A misstatement of the time to answer ... in a publication notice for constructive service renders the ... notice fatally defective. ( Laflin v. Gato, (Fla.) 42 ... So. 387; Schrader v. Schrader, (Fla.) 18 So. 674; ... Culver v. Phelps, (Ill.) 22 N.E. 890; Newcombe ... v. Cohn, 67 ... ...
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...v. Green Cove Springs & M. R. Co., 139 U.S. 137, 11 S.Ct. 512, 35 L.Ed. 116; Shrader v. Shrader, 36 Fla. 502, 18 So. 672. In Laflin v. Gato, 52 Fla. 529, 42 So. 387, it was that, where the order for publication fixes the appearance day more than 50 days from the making of the order when the......
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