Lucian v. Southern Ohio Sav. Bank & Trust Co.

• Decision Date: 30 January 1945
• Parties: LUCIAN v. SOUTHERN OHIO SAV. BANK & TRUST CO.
• Court: Florida Supreme Court

23 So.2d 674

156 Fla. 370

LUCIAN v. SOUTHERN OHIO SAV. BANK & TRUST CO.

Florida Supreme Court

January 30, 1945

On Rehearing July 20, 1945.

On Further Rehearing Oct. 16, 1945.

Appeal from Circuit Court, Dade County; George E. Holt, Judge.

A. C. Franks, of Miami, for appellant.

Loftin, Anderson Scott, McCarthy & Preston, of Miami, for appellee.

TERRELL, Justice.

On consideration of this case June 6, 1944, certiorari was denied. Fla., 18 So.2d 27. When the mandate went down, the cause was heard by the Chancellor on decree pro confesso, which defendant moved to vacate and tendered an answer. The Chancellor promptly denied the plaintiff's application for a final decree based on the decree pro confesso, vacated and set aside the decree pro confesso, and granted the defendant's application to file her answer. Defendant then announced that she had no testimony to offer except the record and proceedings in Leonora Forney Burkhart v. William S. Burkhart decided June 10, 1941. The Chancellor found that the decree in the latter case was void for want of service on Burkhart and entered final decree as prayed for in the bill. The instant appeal is from the final decree.

Counsel are at variance as to questions presented. Appellant contends that appellee should not have been permitted to intervene, that he should have been permitted to prove his bill, and that Burkhart's conduct amounted to a general appearance. The appellee contends on the other hand that the whole question turns on the question of service on Burkhart and that that question is concluded against appellant by Pennoyer v Neff, 95 U.S. 714, 5 Otto 565, 24 L.Ed. 565.

In Rorick v Stilwell, 101 Fla. 4, 133 So. 609, we held that any motion involving the merits or in recognition of the suit amounted to a general appearance regardless of the movant's intention. A majority of the court are of the view that under the rule in Rorick v. Stilwell, supra, Burkhart's conduct amounted to a general appearance. When all is said, the point in the case is to avoid a judgment predicated on a prenuptial contract, a separation agreement, and a divorce decree. No case in the history of this Court has been here so many times. We think every element of service was implicit in the litigation. Pennington v. Fourth National Bank of Cincinnati, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713, L.R.A.1917F, 1159.

Reversed on authority of Rorick v. Stilwell, supra, for further proceedings.

CHAPMAN, C. J., and BUFORD and THOMAS, JJ., concur.

BROWN and SEBRING, JJ., dissent.

ADAMS, J., not participating.

On Rehearing.

Rehearing denied.

THOMAS, Justice (dissenting).

Upon a re-study of the record in this case I feel impelled to recede from my concurrence in the opinion prepared by Mr. Justice TERRELL. In the case of Burkhart v. Burkhart, 144 Fla. 168, 197 So. 730, and 144 Fla. 176, 198 So. 21, it was held that the special appearance and motion to dismiss the bill of complaint did not constitute a general appearance. Although I did not participate in that decision which was apparently based on the opinion in Bowmall v. Bowmall, 127 Fla. 747, 174 So. 14, I was familiar with the point presented and held the conviction that a contrary ruling should have been made for the reasons later given in an opinion prepared by Mr. Justice Sebring, Aldrich v. Aldrich, 153 Fla. 856, 16 So.2d 47, to which I agreed, and in Rollins v. Rollins, Fla., 19 So.2d 562, which I wrote. For the same reasons I agreed only to the conclusion in Burkhart v. Circuit Court, 146 Fla. 457, 1 So.2d 872. The decisions in the Aldrich and Rollins cases were contrary to the announcement in Bowmall v. Bowmall, supra.

Nevertheless, I now feel that, despite these views, an outright affirmance of the decision of the lower court should be entered because the rule announced in the opinion first above cited had become the law of the case and should be followed therefore in this litigation.

ADAMS, J., concurs.

On Further Rehearing.

BROWN, Justice.

My attention has been called to certain factual errors contained in my former opinion filed in this case on July 20, 1945, originally written as a dissenting opinion, and the same has been withdrawn with the permission of the Court, and, with due apologies, this rewritten opinion is submitted in its stead.

This is an appeal from a final decree rendered by the Circuit Court of Dade County on June 19, 1944, in favor of the plaintiff, appellee here, as executor of the estate of William S. Burkhart deceased, which decree annulled and set aside a former decree of said court rendered on June 10, 1941, in the case of Burkhart v. Burkhart, except in so far as said former decree dissolved the bonds of matrimony between the parties. The defendant, Fredericka Lucian, as executrix of the will and estate of Leonora Forney Burkhart, took this appeal. It appears from the pleadings and proof that William S. Burkhart died Nov. 13, 1941, and Leonora Forney Burkhart died May 21, 1943. This suit is between their respective executors.

The bill in the case now before us was filed Nov. 19, 1943, and alleges that for a long period prior to his death William S. Burkhart had been a citizen and resident of Ohio, but that on January 11, 1939, his wife, Leonora Forney Burkhart, filed in the Circuit Court of Dade County, Florida, a bill for divorce against him which prayed for other relief also, a copy of which bill was attached, in which it was alleged that each of the parties was, and had been for more than ninety days, a resident of Dade County, Florida, and that the defendant was temporarily residing or in business in Cincinnati, Ohio, and residing in Burkhart's Sanatarium, Reading, Ohio, but that it was not alleged in said bill, or by sworn affidavit, that any basis existed for constructive service of process against Burkhart as a resident of Florida under the applicable statute, 4895, C.G.L.1927, 48.04, F.S.1941, F.S.A. The bill in the case now before us alleges that it was not true that William S. Burkhart was a resident of Florida, and that this was shown in the divorce case by the Master's report to whom the matter was referred in connection with the defendant Burkhart's special appearance and motion to quash service, which is referred to in 144 Fla. 168, 197 So. 730; 144 Fla. 176, 198 So. 21. It is alleged in the instant bill that Burkhart was and always had been a resident of Ohio. The chancellor sustained this allegation by his decree in the instant case. The bill further alleges that in the wife's suit for divorce, upon plaintiff's praecipe, order of publication was made by the clerk on April 1, 1939, and duly published during that month, in a form applicable to non-resident defendants, and gave the defendant's address as: 'Care of Burkhart's Sanatarium, Reading, Ohio.' It is further alleged that at no time during the progress of the divorce case was there ever filed any amendment to the bill of complaint, or any supplemental bill. This allegation is sustained by the record.

It is further alleged in the instant bill that on May 1, 1939, the defendant Burkhart, appearing specially for that purpose, filed a motion to quash the order for constructive service and to dismiss the plaintiff's petition upon the ground that the court had not acquired jurisdiction over his person, or over the subject matter of the suit, and that plaintiff had not resided in Florida for ninety days before filing her bill. The chancellor, after appointing a master to take testimony and submit a report, on September 15, 1939, overruled this motion and adjudged that it constituted a general appearance and required defendant to answer by the November rule day, and taxed the Master's fee and costs, amounting in all to $414.50 against him. That on appeal to the Supreme Court, this court held that the defendant's said special appearance and motion to quash did not constitute a general appearance so as to give the trial court jurisdiction of the person of the defendant husband; that in this respect the lower court's order was reversed. That allegation is correct. See Burkhart v. Burkhart, 144 Fla. 168, 176, 197 So. 730; 144 Fla. 176, 198 So. 21.

But in the decision just cited, this court held that 'as the Court has jurisdiction of the parties as otherwise held by the Chancellor the decree is in other respects affirmed.' The only adjudications in said order of the chancellor, entered September 15, 1939, other than that the special appearance and motion to quash amounted to a general appearance, were to confirm and approve the Master's report, which report held that the court 'had jurisdiction of the parties and the subject matter'; that Mrs. Burkhart was a bona fide resident of Florida and had been for more than ninety days preceding the filing of her bill; and that the 'matrimonial domicile' of the parties was in Florida. For somewhat conflicting definitions of 'matrimonial domicile,' see 26 Words & Phrases, Perm.Ed 'Matrimonial Domicile.' The order also required the defendant Burkhart to pay the Master's fee of $250 and the reporting of the testimony in behalf of the plaintiff, $164.50. The effect of this holding by this court, in 144 Fla. 168, 176, 197 So. 730; 144 Fla. 176, 198 So. 21, was that the defendant's special appearance and motion to quash did not amount to a general appearance, but that constructive service on the husband by publication and plaintiff's residence in Florida for considerably more than ninety days gave the court below jurisdiction to proceed with the pending divorce suit, and left standing the chancellor's order taxing against defendant the costs which had accrued in connection with his special appearance and motion to quash. Our above cited decision may also have amounted to an approval of the...