Malone v. Meres

Decision Date30 April 1926
Citation109 So. 677,91 Fla. 709
CourtFlorida Supreme Court

Rehearing Denied July 17, 1926.

En banc.

Suit by Ernest Meres, as receiver of the Sponge Exchange Bank of Tarpon Springs, Fla., against Frank E. Malone to enforce a lien. From an order denying a motion to set aside and vacate a final decree of foreclosure and a confirmation decree defendant appeals.


See also, 107 So. 625.

Brown C.J., dissenting.

(Syllabus by the Court.)

On Petition for Rehearing.

(Additional Syllabus by Editorial Staff.)

Appeal from Circuit Court, Pinellas County; M. A. McMullen, judge.


Wm. W. Flournoy, of De Funiak Springs, for appellant.

McKay & Withers, of Tampa, for appellee.



Suit was brought to enforce a lien predicated upon the following written instrument, it being alleged that complainant 'does hereby elect to claim a lien upon the property:'

'Articles of agreement, made this 15th day of October, in the year of our Lord one thousand nine hundred and nineteen between the Sponge Exchange Bank, a corporation organized and existing under the laws of the state of Florida, at Tarpon Springs, Pinellas county, Fla., party of the first part, and F. E. Malone, of New York, party of the second part, witnesseth that if the said party of the second part shall first make the payments and perform the covenants herein mentioned on his part to be made and performed, the said party of the first part hereby covenants and agrees to convey and assure to the said party of the second part, his heirs, executors, administrators, or assigns in fee simple, clear of all incumbrances whatever, by a good and sufficient bill of sale, all of the furniture, fixtures, and equipment belonging to the Tarpon Inn, and now in the Tarpon Inn, in Tarpon Springs, Fla., and the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of fifteen thousand dollars, in the manner following:

'One thousand dollars cash, the receipt of which is hereby acknowledged, and three thousand dollars on or before March 15, 1921, three thousand dollars on or before March 15, 1922, three thousand dollars on or before March 15, 1923, three thousand dollars on or before March 15, 1924, and two thousand dollars on or before March 15, 1925, with interest at the rate of six per centum per annum, payable annually on the whole sum remaining from time to time unpaid; and to pay all taxes, assessments, or impositions that may be legally levied or imposed upon said that may be legally levied or imposed upon said keep the property insured in some company satisfactory to the party of the first part in a sum not less than $14,000 during the term of this agreement. And in case of failure of the party of the second part to make either of the payments or any part thereof, or to perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and terminated, and the party of the second part shall forfeit; all payments made by him on this contract; and such payments shall be retained by the said party of the first part in full satisfaction and liquidation of all damages by it sustained, and said party of the first part shall have the right to re-enter and take possession of the property aforesaid without being liable to any action therefor.
'The payments above set forth shall be covered by promissory notes of even date herewith, and for the time specified in the agreement above, and said notes to be payable at the Sponge Exchange Bank. The party of the second part, however, reserves the right to pay any or all of these notes at any time by paying the interest thereon to date of payment.
'It is mutually agreed, by and between the parties hereto, that the time of payment shall be an essential part of this contract, and that all covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators, and assigns of the respective parties.
'In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written.'

The contract was signed by both the vendor and the purchaser.

An answer filed for the defendant demanded 'full and strict proof.'

On September 11, 1923, the court decreed a foreclosure for the amounts due with attorney's fees, and on November 19, 1923, a sale of the property was confirmed and a deficiency decree rendered.

On April 16, 1924, counsel, who had not theretofore represented the defendant in the cause, made a motion 'to set aside and vacate the final decree' and the confirmation decree herein for that, to wit:

'(a) The final decree is void for lack of jurisdiction in the court, as disclosed by the record, to render such decree.

'(b) The allowance in the final decree of $1,000 as attorney's fees is beyond the jurisdiction of the court and void.

'(c) The record discloses no fact constituting a cause of action within the jurisdiction of a court of equity.

'(d) The confirmation decree is void for lack of jurisdiction in the court as disclosed by the record to render such decree.'

The motion was denied May 14, 1924, and the defendant took an appeal June 9, 1924, from the order denying the motion to vacate the final decree and the confirmation decree, upon the theory that the final decree is void and that the failure to appeal from such final decree within the time allowed by law is not material.

It is the contention of the appellant that the final decree was void, among other reasons, for the following specific reasons:

'(1) That the bill of complaint clearly showed that the complainant had a clear, complete, adequate, and specific remedy at law.

'(2) That the bill of complaint clearly showed that there was no element in the alleged cause of action to give a court of equity jurisdiction in that the cause of action alleged was one over which courts of equity never take jurisdiction--a cause of action entirely outside of equitable cognizance--as equity jurisdiction is understood and administered in both England and American.

'(3) That, even if equity had cognizance or jurisdiction in such case, the final decree as and when rendered was premature, and a nullity, and void, being in direct violation of section 3135 of the Revised General Statutes, being rendered prior to any order for oral testimony before the chancellor, and prior to reducing to writing the testimony, and prior to filing the written testimony in the cause.'

The portion of section 3135, Revised General Statutes, 1920, referred to, is as follows:

'Oral examinations before the court shall only be had after order to that effect made by the court upon motion by either party, the testimony shall be taken down in writing, and filed in the cases.'

As to the third point above made, counsel for appellant states that 'the oral testimony was not taken and reduced to writing nor was any filed in the cause,' and contends that:

'The decree, having been rendered upon oral testimony prematurely, before the prerequisites of the statute had been observed, before an order authorizing oral testimony had been rendered, and before the testimony had been reduced to writing, and before it had been filed in the cause, was and is a mere nullity, unauthorized and void.'

Section 3135, above quoted, does not confer statutory powers, as in Wiggins v. Williams, 36 Fla. 637, 18 So. 859, 30 L. R. A. 754, but merely regulates procedure by directing the method of taking and filing testimony in causes as to which the court has general jurisdiction. Statutory regulations as to service of process relate to the acquisition of jurisdiction of the parties litigant and must be observed. See Milton L. & Inv. Co. v. Our Home L. Ins. Co., 81 Fla. 227, 87 So. 636.

It is clear that, if the court had jurisdiction of the defendant and of the subject-matter with authority to render a decree in the cause, a failure to comply with the statute regulating the method of taking testimony and making the record in the cause does not render the decree void. The subject-matter of the suit was the assertion of a lien predicated upon a contract of sale of personal property that was within the jurisdiction of the court.

A judgment that is absolutely null and void, mere brutum fulmen, can be set aside and stricken from the record on motion at any time, and may be collaterally assailed, but the judgment that is voidable only because irregular or erroneous must be moved against in time by motion to vacate, or by resort to an appellate tribunal; otherwise it becomes an absolute verity, and passes beyond the control of the courts to disturb. Einstein v. Davidson, 35 Fla. 342, 17 So. 563; Torrey v. Bruner, 60 Fla. 365, 53 So. 337; Lucy v. Deas, 59 Fla. 552, 52 So. 515.

If the court has acquired jurisdiction of the subject-matter and of the parties, the judgment or decree entered is binding, even though erroneous because of irregularity of procedure, and such judgment or decree will not be set aside, reversed, or modified, except by appropriate direct appellate procedure. Wilds v. State, 79 Fla. 575, 84 So. 664; Hillsborough Grocery Co. v. Ingalls, 60 Fla. 105, 53 So. 930.

Where a court has general jurisdiction of civil actions at law and also of all equity causes, and the subject-matter of a suit or action and the relief sought are within the jurisdiction of the court, whether it be a contract right in personal property or title to real estate or other civil matter, the question whether the relief sought should be by an action at law or by a suit in equity does not ordinarily involve the power of the court to...

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