Mills v. Shipp & Head, Inc.
| Citation | 171 So. 535,126 Fla. 495 |
| Court | United States State Supreme Court of Florida |
| Decision Date | 11 December 1936 |
| Parties | MILLS et al. v. SHIPP & HEAD, Inc. |
Rehearing Denied Jan. 12, 1937.
Suit by Shipp & Head, Incorporated, a Florida corporation, against Frederick Leon Mills, Herbert Stephen Mills, Hayden Robert Mills, Ralph Joseph Mills, and another. From an order denying a motion to quash service of publication, and to vacate order of publication, the named defendants appeal.
Affirmed and remanded with directions. Appeal from Circuit Court, Dade County; H. F. Atkinson, judge.
Shutts & Bowen, Crate D. Bowen, and Charles A. Carroll, all of Miami, for appellants.
W. H Burwell and Shipp, Evans & Kline, all of Miami, for appellee.
This is a special and limited appeal in chancery taken by four nonresident defendants from an order of the circuit court of Dade county denying appellants' motion to quash service by publication on them and to vacate the order of publication. See Rorick v. Stilwell, 101 Fla. 4, 133 So. 609.
The suit is one in which certain individuals, namely, Frederick Leon Mills, Herbert Stephen Mills, Hayden Robert Mills, and Ralph Joseph Mills, residents of Cook county, Ill., were joined as defendants in a suit instituted in the court below principally against a Florida corporation, Mills Development Corporation, as the chief object of the relief prayed for.
At the time of the institution of the suit, an order for publication was entered based on an affidavit appended to the bill. Within the time required for publication of the order of constructive service, the individual defendants (appellants here) filed their special appearance and motion to quash the order of publication and to quash the attempted service. The motion was supported by proofs in the form of affidavits to which counter affidavits were filed by complainant below. After the chancellor denied the motion by which appellants attacked the jurisdiction of the court over their persons appellants filed no appearance or pleading in the cause, but did take this special appeal and gave supersedeas bond to make the same effective as a stay of the proceedings below. A companion appeal in the same case by the codefendant corporation has been considered and decided in connection with the disposition of this appeal. The opinion in the companion appeals sets forth the exact nature of the controversy. See Mills Development Corp. v Shipp & Head, Inc. (Fla.) 171 So. 533 ().
The suit in which the constructive service order was applied for is one of equitable cognizance as we have held on the appeal sued out by Mills Development Corporation in the companion case just cited.
Where the bill is one of equitable cognizance and seeks equitable relief affecting a Florida corporation as defendant, with reference to its transactions and affairs or corporate property rights and interests situate in this state, an order for constructive service of process will lie against the corporate officers named in the same suit as codefendants in order to bind them with respect to what may be decreed against the corporation pursuant to the equity of the bill the privity of the corporate officers with the corporation being sufficient to establish their privity with the corporate res which is the subject-matter of the suit and therefore a sufficient predicate to support an order for constructive service of process against such corporate officers when they are shown to be nonresidents and incapable of being served otherwise. See Broward Estates Corp. v. Chilingworth, 93 Fla. 366, 112 So. 64; ...
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