McCord v. Smith

• Decision Date: 18 November 1949
• Parties: McCORD v. SMITH (two cases).
• Court: Florida Supreme Court

Page 704

43 So.2d 704

McCORD v. SMITH (two cases).

Supreme Court of Florida, Division B.

Nov. 18, 1949.

Rehearing Denied Feb. 4, 1950.

J. Thomas Gurney, Orlando, for appellants.

Roger A. Barker, Orlando, for appellee.

HOBSON, Justice.

Upon motion of counsel for appellants the above entitled cases were, by order of this Court, consolidated. Consequently, our opinion herein will be applicable to, and our judgment binding in, each case. Appellant's declaration, which was filed on May 3, 1948, alleged that on the 9th day of April, 1947, in the State of Iowa, appellee's decedent, Oscar Schmidt, so negligently drove an automobile as to injure appellant.

That on the 29th day of April, 1947, an action was instituted in the District Court of the State of Iowa in and for Story County by Emma McCord, plaintiff, against this defendant, to-wit: 'In the District Court of the State of Iowa in and for Story County, Emma McCord, Plaintiff, vs. Walter E. Smith as Executor of the Last Will and Testament of the Estate of Oscar Schmidt, deceased, Case No. 20702'; by notifying said Walter E. Smith, as executor of the estate of Oscar Schmidt, deceased, pursuant to the statutes of the State of Iowa in such cases made and provided, to appear and defend said cause in the District Court of Iowa in and for Story County, before noon on the sixtieth day following the filing of said notice, and said notice was filed in said cause on the 29th day of April, 1947.

The said Walter E. Smith, as executor of the estate of Oscar Schmidt, deceased, received said notice and thereafter, within the sixty day period, to-wit: and more particularly on the 24th day of June, 1947, the said Walter E. Smith, as executor of the estate of Oscar Schmidt, deceased, filed a notice of intention to file a petition for removal of said cause to the United States District Court in Iowa, and the said Walter E. Smith, as executor of the estate of Oscar Schmidt, deceased, filed a removal bond in said cause, to-wit: on the same date, the 24th day of June, 1947; that upon the said petition for removal and the filing of said bond by Walter E. Smith, as executor of the estate of Oscar Schmidt, deceased, the Honorable G. R. Hill, Judge, Eleventh Judicial District of Iowa, entered an order for removal on the 30th day of June, 1947.

That thereafter the said Walter E. Smith, as executor of the estate of Oscar Schmidt, deceased, participated in the case in the District Court of the United States, Southern District of Iowa, Central Division, by filing an answer by and through his attorney and by demanding a jury trial in said cause--call of which was granted to him, and to the end that on the 19th day of December, 1947, a jury brought in a verdict in favor of the plaintiff against the said Walter E. Smith, as executor of the eatate of Oscar Schmidt, deceased, in the sum of $4,000.00 plus $105.45 costs; that thereafter a judgment was rendered on the said verdict by the District Court of the United States, Southern District of Iowa, Central Division, in the sum of $4,000.00 plus $105.45 costs.

That after the rendition of said verdict, proof of claim in the estate of Oscar Schmidt, deceased, now being probated in the County Judge's Court, Orange County, Florida, was filed on the 12th day of January, 1948; and that thereafter on the 17th day of February, 1948, the said defendant, Walter E. Smith, as executor of the estate of Oscar Schmidt, deceased, filed objections to the claim, and thereafter, on the 19th day of March, 1948, plaintiff instituted this suit against the defendant, Walter E. Smith, as executor of the estate of Oscar Schmidt, deceased, in this Court.

On the 5th day of July, 1948, the appellee filed his amended pleas. Five pleas were filed, said pleas making various attacks upon Chapter 23970, Laws of Florida, Acts of 1947, F.S.A. § 733.16, not material here.

In and by said pleas the following defenses material here were raised:

'(1) That beginning on April 18, 1947, the defendant caused to be published a Notice to Creditors as prescribed by law; that shortly thereafter, Appellant had knowledge of the probate and administration of the estate of Oscar Schmidt, deceased, in Orange County, Florida, but nevertheless did not file any claim against the said estate in said court during the eight months period after said first publication of Notice to Creditors, and that Appellant's claim, in the form of a judgment and verdict in the District Court of the United States, in the Southern District of Iowa, Central Division, was filed in the County Judge's Court in and for Orange County, Florida, more than eight months after the said first publication of Notice to Creditors, and that Appellant's claim is therefore void and she has no cause of action.

'(2) That Chapter 23970, Laws of Florida, Acts of 1947, does not apply to suits filed, commenced and pending in courts outside the territorial limits of the State of Florida.

'(3) That Chapter 23970, Laws of Florida, Acts of 1947, became effective June 16, 1947, after suit was filed by the Appellant against the Appellee in the District Court in and for Story County, State of Iowa, but that said act 'is unconstitutional insofar as its retrospective provisions are concerned, in that the Title to said Chapter 23970, Laws of Florida, Acts of 1947, does not indicate that the law is to operate retrospectively.'

To these pleas, as amended, appellant filed her demurrer on the following grounds material here:

(1) That by virtue of the provisions of Chapter 23970, Laws of Florida, Acts of 1947, it was unnecessary for appellant to file a claim in the estate of Oscar Schmidt, deceased, during the pendency of the aforesaid suit against the executor in the State of Iowa;

(2) That the defense attempted to be set up by defendant was available to it at all times during the pendency of the suit in the United States District Court in the State of Iowa, in which, on the 19th day of December, 1947, a judgment was rendered for appellant against the appellee, but that no such defense was raised and that the defense raised by defendant, if any he had thereupon, became res adjudicata.

(3) That 'under the Constitution of the United States of America, under Section 1 of Article IV, this Court must give full faith and credit to the judgment rendered in the Federal Court in Iowa.'

(4) That Chapter 23970, Laws of Florida, Acts of 1947, reamended and reenacted section 733.16, F.S.1941, F.S.A., and that there was no provision in the reamendatory act which provided that if any part of said act be declared unconstitutional, the other part would not be affected, and the amendatory act is so intermingled and so essentially and inseparably connected in substance, that this court cannot trim out one part of the said act and leave the rest constitutional.

(5) That the appellee is attempting to to rely upon a portion of the act to defeat the claim of the appellant and at the same time is contending that another portion of the same act (on which he relies) is unconstitutional.

On February 4, 1949, the Court entered its Order overruling appellant's demurrer to appellee's second amended pleas on two grounds:

(1) That Chapter 23970, Laws of Florida, Acts of 1947, has no extra-territorial application, and

(2) That Chapter 23970, Laws of Florida, Acts of 1947, is unconstitutional insofar as its retrospective provisions are concerned in that the title to said act does not indicate that said Chapter is to act retrospectively.

Appellant elected to stand upon the demurrer and the Court in the same order entered final judgment dismissing appellant's cause of action from which order this appeal was taken.

The question presented is whether the learned Circuit Judge erred in entering the order overruling appellant's demurrer to appellee's second amended pleas and the final judgment. The proper determination of this question necessitates a consideration of Chapter 23970, Laws of Florida, Acts of 1947, with the following thoughts in mind: (1) Whether the facts in this case require an extra-territorial application of the Act, and (2) if they do, whether said act should be held to have no extra-territorial application; (3) whether the so-called retrospective or retroactive provision is, in a legal sense, retrospective or retroactive and therefore invalid; (4) and, in any event, whether the challenged provisions are unconstitutional and invalid in that (so it is contended) the title to said Act does not indicate that said law contains any such provisions. Other questions are posed but we do not find it necessary to a proper disposition of this case to discuss or decide them.

The title of Chapter 23970, Laws of Florida, Acts of 1947, reads: 'An Act Amending Section 733.16, Florida Statutes, 1941, As Amended By Chapter 22783, Laws Of Florida, Acts Of 1945, And By Chapter 22889, Laws Of Florida, Acts Of 1945, The Same Relating To The Form And Manner Of Presenting Claims Against Estates Of Decedents, And Fixing A Limitation Of Time For The Filing And Enforcement Thereof.'

The sections of the law under attack here as having no extra-territorial application and as being invalid because of a retrospective aspect of one and the failure of the title of the Act to give sufficient notice of the subject matter of either, are:

'Provided, however, that if suit upon any such claim or demand is filed and service of process...