Newton v. Bryan
Decision Date | 23 February 1940 |
Parties | NEWTON v. BRYAN et al. |
Court | Florida Supreme Court |
Suit by Mabel M. Newton Bryan, joined by her husband and next friend J. N. Bryan, against Arthur V. Newton, to enforce divorce decree for payment of permanent alimony and support money for children, attorney's fees, and court costs. From a decree for complainants, defendant appeals.
Affirmed. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.
John Tilden, of Orlando, for appellant.
Baker & Thornal, of Orlando, for appellee.
On August 2, 1938, Mabel M. Newton Bryan, joined by her husband J. N. Bryan, filed a verified bill of complaint in the Circuit Court of Orange County, Florida, against Arthur V. Newton, a non-resident, as defendant. The bill of complaint alleged that a final decree of divorce was entered by the Circuit Court of the Ninth Judicial Circuit of Florida dated August 12, 1937, decreeing a divorce and requiring the defendant Nowton to make certain monthly payments as permanent alimony and as support money for the children of the parties, attorney's fees, and court costs, and that no payments were ever made by the defendant Newton under the terms of the decree of divorce.
The verified bill of complaint further alleged that the defendant, Arthur V. Newton, was a non-resident of the State of Florida and that he was over the age of the twenty-one years and that there was no one in the State of Florida the service of a subpoena upon whom would bind the defendant; that the defendant is that owner of an undivided one-half interest in and to described real estate located in Orange County, Florida, and that the plaintiff has a lien on and is entitled to impress a lien against said real estate for the amount found to be due and unpaid under the terms of the original divorce decree and that said real estate should be sold under an order of the court to satisfy the lien.
The bill of complaint prayed for relief, viz.: (a) An accounting of the money alleged to be due her from the defendant, in monthly payments under the terms of the final decree of divorce; (b) that any sum of money found to be due be declared to be a lien upon the real estate described in the bill of complaint situated in Orange County; (c) that the lien impressed upon the real estate so described be foreclosed and that the defendant's property be sold to satisfy the same.
The verified bill of complaint recited that Arthur V. Newton was a resident of the State of New York and his resident address as particularly as known is Stratton Road, New Rochelle, New York, but that he received mail addressed to him at 1733 Broadway, New York City.
On August 2, 1938, the Clerk of the Circuit Court of Orange County entered an order of publication, the body of which is, viz.:
It is ordered that this notice be published once a week for four (4) consecutive weeks in the Orange County Chief, a newspaper published in Orange County, Florida.
'Witness my hand and the seal of said Court in Orlando this 2nd day of August, A. D. 1938.'
The order of publication required the defendant to appear on the 5th day of September, A. D., 1938, being the first Monday of said month. The certificates as made by the Clerk, shows that the order of publication was published in the Orange County Chief once a week for four consecutive weeks prior to the date of appearance required by the order of publication. The affidavit of the publisher recites that the order was published once each week for four consecutive weekly issues.
On September 20, 1938, the defendant filed his Special Appearance, and not otherwise, to quash the process and service of process previously issued. The motion to quash is, viz.:
'The defendant, by his Solicitor undersigned, and pursuant to his Special Appearance filed herein (and not otherwise) files this his Motion to Quash the Process and Service of Process issued in this cause against him, and as grounds for said motion says:----
'1. That the service of process upon him is insufficient to, and does not, give the Court jurisdiction of his person.
'2. That there has been no process, by way of attachment or levy of execution to bring the real property mentioned in the Bill of Complaint within the jurisdiction, or before, the Court in this Action, as a basis or predicate to securing service by publication upon him.
The lower court entered an order on the motion to quash, viz.:
'This cause coming on this day to be heard upon the Defendant's Motion to Quash and the Court being advised in the premises.
On the rule day in November, 1938, a decree pro confesso was entered by the Clerk of the Circuit Court against the defendant, Arthur V. Newton, and thereafter testimony was taken, and on the 23rd day of November, 1938, the lower court made and entered a final decree according to the prayer of the verified bill of complaint. An appeal has been perfected to this Court and the same is here for review.
It is contended by counsel for appellant that the relief sought by the bill of complaint based on constructive service is in personam and not in rem and for this reason the lower court was without jurisdiction to consider or determine the cause. Counsel for the parties generally admit that the statutory requirements for service by publication have been complied with, but counsel for appellant contends that the lower court has jurisdiction to grant relief only in actions in rem but not in personam.
It is now established that a personal judgment on constructive service on a non resident who does not...
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