Newton v. Bryan

Decision Date23 February 1940
PartiesNEWTON v. BRYAN et al.
CourtFlorida 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.

COUNSEL

John Tilden, of Orlando, for appellant.

Baker &amp Thornal, of Orlando, for appellee.

OPINION

CHAPMAN Justice.

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.:

'To: Arthur V. Newton, whose resident address as particularly as is known is Stratton Road, New Rochelle, New York, and whose address for the receipt of mail is 1733 Broadway, New York City, New York:
'You are hereby notified that suit has been brought against you in the Circuit Court in and for Orange County, Florida, in Chancery as above entitled, for the impressment of a lien upon your undivided one-half (1/2) interest in and to real estate situate in Orange County, Florida, to-wit: 'Lot Twelve (12), Block 'G', Golf Course Section of College Park Addition to the City of Orlando, Orange County, Florida. by Mabel M. Newton Bryan, joined by her husband and next friend, J. N. Bryan, and you are hereby required to file with the Clerk of said Court your appearance (personally or by attorney) in the said suit on the First Monday in September, A. D. 1938, being the 5th day of the month, and thereafter to file with said Clerk your written defense, if any, to the Bill of Complaint in said suit filed and at the time prescribed by law.
'Herein fail not or judgment will be entered against you by default.

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.

'3. That the Court is without jurisdiction of the person or property of this Defendant in this cause.'

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.

'It is hereby ordered, adjudged and decreed, That the Defendant's Motion to Quash be and it is hereby denied and said Defendant is hereby given until the Rule Day in November, to-wit: November 7th, A. D. 1938 in which to further plead. Defendant's exception to the above ruling is noted.'

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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15 cases
  • Burkhart v. Circuit Court of Eleventh Judicial Circuit
    • United States
    • Florida Supreme Court
    • March 11, 1941
    ...alimony and attorneys' fees based on constructive notice is sufficient to meet all constitutional requirements. See Newton v. Bryan, 142 Fla. 14, 194 So. 282; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; R.C.L. par. 34, pages 1290, 1291; Baker v. Baker, Eccles & Co., 242 U.S. 394, 37 S.Ct. ......
  • Gelkop v. Gelkop
    • United States
    • Florida District Court of Appeals
    • May 20, 1980
    ...here, or by the entry of a money judgment against the respondent. Peacock v. Peacock, 160 Fla. 630, 36 So.2d 206 (1948); Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940); Wood v. Wood, 276 So.2d 527 (Fla. 3d DCA It, therefore, follows that the above-discussed provisions of the final judgmen......
  • Matz v. O'Connell, 3201
    • United States
    • Florida District Court of Appeals
    • June 12, 1963
    ...principles are also well established by Florida precedent. E. g., Miller v. Griffin, 1930, 99 Fla. 976, 128 So. 416; Newton v. Bryan, 1940, 142 Fla. 14, 194 So. 282; Harris & Company Advertising, Inc. v. Republic of Cuba, Fla.App.1961, 127 So.2d 687; Berlanti Construction Co. v. Republic of......
  • Bedford Computer Corp. v. Graphic Press, Inc.
    • United States
    • Florida Supreme Court
    • March 6, 1986
    ...based upon constructive service of process would deprive a defendant of his property without due process of law. Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940). The courts of this state have followed this rule in the context of contract disputes such as the one here. Gaskill v. May Brothe......
  • Request a trial to view additional results

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