Minick v. Minick

Decision Date18 July 1933
Citation149 So. 483,111 Fla. 469
PartiesMINICK v. MINICK.
CourtFlorida Supreme Court

Rehearing Denied Aug. 10, 1933.

Divorce suit by Rufus G. Minick against Grace Robinson Minick. From a final decree of divorce in favor of complainant, defendant appeals.

Affirmed. Appeal from Circuit Court, Osceola County; F A. Smith, judge.

COUNSEL

Murray W. Overstreet, of Kissimmee, for appellant.

G. P Garrett, of Orlando, for appellee.

OPINION

BROWN Justice.

This is an appeal from a final decree of divorce rendered in favor of the husband, the appellee in this case, and against the wife and granting to the husband the custody of the child of said marriage, a boy eleven years of age.

The bill, which was sworn to by the complainant, reads in part as follows:

'Your Orator, Rufus G. Minick, brings this his bill of complaint against the defendant, Grace Robinson Minick, whose true residence and home and place of abode is Kissimmee, Osceola County, Florida.
'And thereupon your Orator complains and says that:
'1. Your Orator is a citizen and resident of the City of Kissimmee, Osceola County, Florida, and has been such citizen and resident since August 10th, A. D. 1920.

'2. Until the desertion hereinafter charged, the defendant was a citizen and resident of the same place, viz: Kissimmee, Osceola County, Florida, and had been such citizen and resident since the same date, viz: August 10th, A. D. 1920. Defendant is thirty-five years of age. Defendant has, ever since October 1st, A. D. 1929, been, and still is, a nonresident of the State of Florida. Her present residence as particularly as is known to defendant, is Carson City, Nevada. There is no person in the State of Florida service of a subpoena upon whom would bind defendant. Complainant has made diligent search, inquiry and effort to ascertain defendant's present address.'

Upon proof of publication duly filed, an order of publication was made and published, pursuant to the statute, section 3111, Rev. Gen. St., section 4895, Comp. Gen. Laws, and a copy posted and mailed to the defendant at Carson City, Nevada. Proof of publication was duly made and filed. A copy of the order for publication which had been mailed by the clerk to the defendant at Carson City, Nev., was returned and filed in said cause together with the original envelope, with indorsements thereon as follows: 'Not here--unclaimed.' 'Addressee notified at Minden, Nevada--no reply.' 'Unclaimed--return to writer.' (Minden, according to the map, is a town near Carson City.)

A decree pro confesso was entered against the defendant for failure to appear, plead, answer, or demur in said cause. Testimony was taken and final decree of divorce rendered in favor of the complainant as above stated. Shortly thereafter, the defendant entered an appeal from the final decree. Ten assignments of error were filed, among them being that the court had erred in its final decree in finding that due service of process by publication was made upon the defendant and that decree pro confesso had been duly and regularly entered against the defendant.

It is well settled that the prosecution of an appeal from a final decree on the merits operates as a general appearance when the cause is remanded to the court below. Ortell v. Ortell, 91 Fla. 50, 107 So. 442, and cases cited therein. There was no special appearance to question the jurisdiction in this case, as in the Ortell Case. It has been held in several cases in this state that the prosecution of writ of error from what purports to be a final judgment of a circuit court operates as a general appearance in the case by the party taking the writ. Barwick v. Rouse, 53 Fla. 643, 43 So. 753; Busard v. Houston, 65 Fla. 479, 62 So. 483; Henry v. Spitler, 67 Fla. 146, 64 So. 745, Ann. Cas. 1916E, 1267.

However, we are inclined to think that the service by publication was sufficient. It is true, the sworn bill alleges that defendant's 'present residence as particularly as it is known to defendant is Carson City, Nevada,' as above pointed out. This is obviously a typographical error in using the word 'defendant' instead of complainant. But, even if this obvious typographical error be not self-correcting, which in connection with the other allegations we think it probably is, the allegation would have been sufficient in this particular if it had merely alleged that the defendant's present residence is Carson City, Nev., omitting the words 'as particularly as is known to defendant.' It does not appear that Carson City, Nev., is such a large town or city as to come within the rule laid down in Ortell v. Ortell, supra. It was held in that case that an affidavit merely stating the residence of the defendant as being in the 'City of New York in the State of New York' should have shown that the affiant was 'specifying as particularly as may be known to affiant such residence,' or words to that effect; otherwise any complainant might make an affidavit stating merely that the defendant was a resident of New York City, or some other large city, without giving the street address, although the complainant might have been thoroughly familiar with such street address, with the result that the copy of the order mailed would not be at all likely to reach such defendant. It was therefore held that the affidavit in that case should either have given the street address of the residence of the defendant, or should have stated that the affiant had 'specified as particularly as may be known to him' such residence of the defendant. But where an affidavit for order of publication, or a sworn bill, otherwise sufficient, alleges that the residence of the defendant is a small town or city, the absence of a street address, or an allegation to the effect that the affiant has specified as particularly as may be known to him the residence of the defendant, will not under the Ortell Case, necessarily invalidate the substituted service for publication based on such affidavit or sworn bill. In this case the bill does allege that the complainant had made diligent search, inquiry, and effort to ascertain defendant's present address, alleging her residence as being Carson City, Nev. As was stated in the Ortell Case, it is not necessary that the affidavit should follow the exact language of the statute, but it should set up such facts as show a compliance with what the statutes require.

In the case of Balan v. Wekiwa Ranch, 97 Fla. 180, 122 So. 559, 562, this court said:

'Section 3111, supra, provides four alternative situations in which the complainant may have an order of publication to effect constructive service upon the classes of defendants therein referred to, namely: (1) 'Whenever the complainant, his agent, or attorney, shall state in a sworn bill or affidavit, duly filed, the belief of affiant that the defendant is a resident of a state or country other than this state, specifying as particularly as may be known to affiant such residence, or (2) that his residence is unknown, or (3) that, if a resident, he has been absent for sixty days next preceding the application for the order of publication, and that there is no person in the state the service of a subpoena upon whom would bind such defendant, or (4) that he conceals himself so that the process cannot be served upon him.' (Italics supplied.) Certain other statements are also required concerning the age of defendant, which are necessary with reference to all classes of defendants as above enumerated.

'Each of the four alternative situations above mentioned, including that in which the affiant states that defendant's residence 'is unknown,' are set off in commas, and are separated by the disjunctive 'or,' indicating the legislative intent that each situation should furnish a distinct, independent and substantive basis for the issuance of an appropriate order of publication, other requirements of the statute being complied with.'

Appellant contends that the allegations of the bill as to the residence of the defendant were contradictory and insufficient. Attention is called to the fact that in the very beginning paragraph of the bill it is alleged that the 'true residence and home and place of abode' of the defendant is Kissimmee, Osceola county, Fla., whereas the second paragraph of the bill alleges that the defendant, 'ever since October 1, A. D. 1929, has been and still is a non-resident of the State of Florida,' and that her 'present residence' is 'Carson City, Nevada.' Appellant contends that inasmuch as rule 17 of Chancery Practice, which was in effect when this bill was filed, required that 'every bill in the introductory part thereof shall contain the names and places of abode of all parties plaintiffs and defendants, by and against whom the bill is brought,' the complainant below was bound by the first allegation in the introductory part of the bill which alleged the residence of the defendant as being Kissimmee, Osceola county, Fla., and that therefore under the statute it was incumbent upon the complainant to further allege that the defendant had been 'absent more than 60 days next preceding the application for order of publication' in order to lay the necessary predicate for service by publication.

It is contended by appellee that the direct allegation in the second paragraph of the bill that the defendant had been a nonresident of the state since October 1, 1929, which was more than a year before the bill was filed, is tantamount to an allegation that the defendant had been absent for sixty days next preceding the application for the order of publication. There is considerable force in this contention but without deciding it, we will pass on to the main contention of appellee as regards this question of the sufficiency...

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