Myakka Co. v. Edwards

Citation68 Fla. 382,67 So. 217
PartiesMYAKKA CO. v. EDWARDS.
Decision Date24 November 1914
CourtUnited States State Supreme Court of Florida

On Rehearing, Jan. 15, 1915.

Appeal from Circuit Court, Manatee County; F. A. Whitney, Judge.

Suit by Robert J. Edwards against the Myakka Company, a corporation. From an adverse order, defendant appeals. Affirmed.

On Rehearing.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

The publication provisions of chapter 4129, Acts of 1893 authorizing constructive service of initial process in chancery, have reference to the appearance day stated in the act, and not to rule days on which defaults for failure to plead or demur may be entered under the statute and chancery rules.

Under chapter 4129, Acts of 1893, authorizing constructive service by publication of initial process to acquire jurisdiction of a nonresident defendant in a chancery case, where the first publication is less than 4 weeks or 28 days prior to the appearance day fixed in the order of publication, the requirement that such publication shall be 'once each week, for four consecutive weeks,' is not complied with and jurisdiction of the person is not acquired (citing Words and Phrases, First and Second Series, For).

Where jurisdiction of a defendant has not been acquired, a decree rendered against him in the cause is not binding upon him.

A court of equity has power to proceed in rem in a suit to quiet title or remove a cloud on title to lands in this state, upon the proper publication of an order against a nonresident defendant.

Jurisdiction must be affirmatively shown by the record, where the parties defendant are shown to be nonresidents and constructive service is depended on for jurisdiction.

The jurisdiction of the court may be attacked collaterally when it is dependent upon constructive service.

The orders for publication required by chapter 4129, Laws of 1893, to be published once a week for 4 consecutive weeks if the defendant be stated to be a resident of the United States, are required to be published once a week for 4 weeks of 7 days each, or at least 28 days from the date of the first publication to the day fixed in the order for the defendant to appear.

COUNSEL

James F. Glen, of Tampa, for appellant.

Arthur F. Odlin, of Arcadia, for appellee.

OPINION

WHITFIELD J.

On December 4, 1913, Robert J. Edwards filed a bill in equity against Myakka Company, a corporation under the laws of South Carolina, and Junius Beebe, in which it is alleged that:

'Edwards is the owner in fee of certain real estate in Manatee county, Fla., and that such real estate is wild, unoccupied, and unimproved; that the said defendant Myakka Company, a corporation as aforesaid, claims to have some title to, or interest in, or claim upon, said land, the exact nature of which is unknown to your orator, but the same constitutes a cloud upon the title of your orator, deprives him of his right to sell or mortgage his said real estate, depreciates the value thereof; and that as against said Myakka Company your orator is without remedy at law. And your orator further says that the defendant Junius Beebe claims some title to, interest in, or lien upon said land of your orator, the exact nature of which claim, title, or interest your orator is unable to state, yet the same constitutes a cloud upon the title of your orator, deprives him of his right to sell or mortgage his said real estate, depreciates the value thereof, and that as against said Beebe your orator has no remedy at law.
'Therefore your orator prays that, by a decree of this honorable court, the title of your orator may be quieted as against said defendants, each and both of them, so far as said real estate of your orator may be concerned; that said defendants be declared possessed of no title to, interest in, or claim upon said lands, and that the same may be decreed to belong absolutely to your orator.
'And your orator prays for such other and further relief in the premises as equity may require and as to your honor may seem meet. Also, that said defendants may be required to answer this bill and to stand to and abide by all orders and decrees which may be entered herein.'

The defendant Myakka Company filed the following plea:

'That this defendant heretofore, to wit, on the 4th day of January, A. D. 1906, filed in the circuit court of Manatee county, Fla., its bill of complaint against the present complainant (Robert J. Edwards) and the unknown heirs of George B. Nichols and Weston Lewis, deceased, and such other persons whose names were unknown as might be interested in the property described in the present bill of complaint, which was particularly described in the said bill of complaint filed by this defendant, for the purpose of quieting the title of this defendant to the premises described in the present bill of complaint, as against the present complainant as well as against the unknown heirs of George B. Nichols and Weston Lewis, deceased, and such other persons as might be interested in the said premises, whose names were unknown to this defendant; and such proceedings were had in said cause that, to wit, on the said 4th day of January, A. D. 1906, an order of publication was duly made requiring the present complainant to appear to the said bill of complaint on the 5th day of February, A. D. 1906, it being alleged in the affidavit appended to the said bill of complaint that the said Robert J. Edwards was a resident of a state other than the state of Florida, and that the place of residence of the said Robert J. Edwards as particularly as the same was known to affiant was in Boston in the state of Massachusetts, and that in the belief of the affiant the said Robert J. Edwards was over the age of 21 years, and an order of publication was also duly made requiring the unknown defendants to the said bill to appear thereto on the 2d day of April, A. D. 1906, and the said order of publication requiring the said Robert J. Edwards to appear to the said bill was duly published once each week for four consecutive weeks in a newspaper published in Manatee county, Fla., designated in the said order, to wit, the Bradentown Herald, and appeared in the issues of said paper on January 11, January 18, January 25, and February 1, A. D. 1906, and the order of publication directed to the unknown defendants was duly published once each week for 12 consecutive weeks in a newspaper published in Manatee county, Fla., designated in the said order, to wit, the Bradentown Herald, and appeared in the issues of said paper of January 11, January 18, January 25, February 1, February 8, February 15, February 22, March 1, March 8, March 15, March 22, and March 29, 1906, and such proceedings were thereafter had in said cause that upon a certificate being duly made and filed by the clerk of the circuit court of Manatee county, Fla., showing the publication of the notices aforesaid in the manner aforesaid and in the issues of the said newspaper aforesaid, and the posting of copies of the said orders in front of the courthouse door of Manatee county and the mailing of a copy of the said order directed to the defendant, Robert J. Edwards, to him at Boston in the state of Massachusetts, upon default of the said Robert J. Edwards and the unknown defendants to the said bill of complaint to appear thereto or to file any plea, answer, or demurrer thereto, the judge of the said circuit court, to wit, on the 26th day of June, A. D. 1906, ordered, adjudged, and decreed that there had been due and legal service by publication in the said cause in all respects in the manner prescribed by law, and that all and singular the allegations of the said bill of complaint should be taken as confessed by the defendants and entered a decree pro confesso against the said defendants to the said bill of complaint, including the said Robert J. Edwards, and thereupon on the said day by the decree of the said court in the said proceeding it was ordered, adjudged, and decreed that this defendant be quieted in its title to the premises described in the said bill of complaint, and in the present bill, as against the said Robert J. Edwards, as well as against the unknown defendants thereto, and that any and all claims on the part of the said Robert J. Edwards to the said lands or any part or parcel thereof be removed as a cloud upon the title of this defendant thereto, and that he, the said Robert J. Edwards, be required, within 10 days from the date of the said decree, to wit, within 10 days from the said 26th day of June, A. D. 1906, to make, execute, and deliver to this defendant a proper release of any and all right, title, and interest in and to the said lands and each and every part and parcel thereof, all of which more fully appears by the record of the proceedings in the suit aforesaid, a certified transcript of which is hereto annexed as 'Exhibit A' hereto, and hereby made by reference a part of this plea as fully as if the same were herein incorporated in haec verba.

'All of which matters and things this defendant doth aver and plead in bar of the entire bill of complaint of the complainant, and prays judgment of this honorable court whether it should make any further or other answer to the said bill of complaint.'

On this plea the following order was made:

'This cause coming on to be heard upon the argument of the plea of the defendant to the bill of complaint filed herein, it being stipulated by counsel for the respective parties that the plea correctly states the facts in reference to the service of process in the former chancery suit, and should be considered with the same force it would have in case a transcript of the record of the former cause were attached thereto, the former record not being found at the present...

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    • United States State Supreme Court of Wyoming
    • 8 Abril 1924
    ...67 N.W. 953, 33 L. R. A. 532; 57 Am. S. Rep. 584; In re Hoscheid's Estate, 78 Wash. 309; 139 P. 61; Myakka Co. v. Edwards, 68 Fla. 372; 67 So. 217, Ann. Cas. 1917B 201; Bacon Kennedy, 56 Mich. 329; 22 N.W. 824; State v. Cherry Co., 58 Neb. 734; 79 N.W. 825; Bouchier v. Hammer, 140 Wis. 648,......
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    ...... Co. v. Arnold, 66 Okl. 132, 167 P. 613, L. R. A. 1918B,. 511; 14 R. C. L. 284, 286; Shrader v. Shrader, 36. Fla. 502, 18 So. 672; Myakka Co. v. Edwards, 68 Fla. 382, 67 So. 217; West 132 Feet, etc., v. City of. Orlando, 80 Fla. 233, 86 So. 197; Guaranty Trust &. Safe Deposit Co. ......
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    ......1018, 114 So. 373. A suit might be maintained at any. time to set aside such void decree. Shrader v. Sharader, 36 Fla. 502, 18 So. 672; Myakka Co. v. Edwards, 68 Fla. 382, 67 So. 217; Cobb v. Hawsey, 56 Fla. 159, 47 So. 484; Wilson v. Drumright, 87 Fla. 202, 99 So. 553.'. . . ......
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    ...... will not be conclusive against an affirmative showing of a. failure to take the necessary steps to confer such. jurisdiction. Myakka Co. v. Edwards, 68 Fla. 372,. 382, 67 So. 217, Ann. Cas. 1917B, 201. . . Assuming. that the subject-matter of the former suit was a ......
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