Ortell v. Ortell

Decision Date16 January 1926
Citation107 So. 442,91 Fla. 50
CourtFlorida Supreme Court
PartiesORTELL v. ORTELL.

Suit by Frank J. Ortell against Marie Phyllis Ortell to review and annul a decree of divorce. From an order denying defendant's motion to vacate an order of service by publication and to quash service by publication, defendant appeals.

Reversed and remanded.

Syllabus by the Court

SYLLABUS

Affidavit for service by publication in chancery case that defendant resides in New York City, without giving street address and without certifying that affiant has specified as particularly as may be known to him residence of defendant, is not sufficient (Rev. Gen. St. 1920, § 3111). Where an affidavit for service by publication in an action in chancery states that the affiant believes that the defendant is a resident of the city of New York, in the state of New York, without giving any street address in said city and without certifying that affiant has specified as particularly as may be known to affiant the residence of such defendant, such affidavit is not sufficient, under the provisions of section 3111 of the Revised General Statutes, as a basis for an order of publication under such statute.

Fact that affidavit for service by publication in chancery case stated what affiant believed to be present mail address of defendant does not correct defect from failure to give street address of defendant, alleged to live in New York City, or to certify that affiant has specified as particularly as may be known to him residence of such defendant (Rev. Gen. St. 1920 § 3111). The fact that such affidavit stated that the affiant believed the 'present mail address of defendant to be Hendersonville, N. C.,' does not cure the defect with reference to the inadequacy of the affidavit as applied to the residence of the defendant, as pointed out in the preceding headnote.

Where residence is stated in affidavit for service by publication in chancery case as being in city which courts judicially know to have considerable population, it should give street address of defendant, or state that affiant has specified as particularly as may be known to him residence of defendant or words to that effect (Rev. Gen. St. 1920, § 3111). In all cases where the residence is stated as being in any city which the courts must take judicial knowledge of as being a city of considerable population, the affidavit for publication, under said statute, should either give the street address of such residence, or state that the affiant has specified as particularly as may be known to him such residence of the defendant, or words to that effect.

Any pleading to merits in chancery case, whenever made constitutes general appearance, waiving all questions of defects in service; party who has not pleaded to merits in chancery case may appear specially for sole purpose of questioning jurisdiction of court over his person, and, where order of publication is made without affidavit required by statute, to quash such order (Rev. Gen. St. 1920, § 3111). Any pleading to the merits, whenever made, constitutes a general appearance and waives all questions of defects in service, but a party who has not pleaded to the merits may appear specially for the sole purpose of questioning the jurisdiction of the court over the person of such party, and in cases where an order of publication is made without such an affidavit as the statute requires to support it, to quash such order.

After appearing specially to quash service and question jurisdiction of court over defendant's person and appeal from court's denial of such motion, motion to extend time for answering bill, stating no waiver was made thereby, does not operate as waiver of jurisdictional question or as general appearance. If, after having appeared specially to quash the service and to question the jurisdiction of the court over the person of the defendant and appealing from the court's denial of such motion, the defendant moves the court to extend the time for answering the bill, such motion will not be deemed a waiver of the jurisdictional question or operate as a general appearance, especially where, as here, it is expressly stated in such motion for extension of time that the same is made without waiving any of defendant's rights with reference to the jurisdiction of the court or any right that she may have acquired by reason of said appeal.

If defendant, without taking steps to question jurisdiction of court over person, moves for and obtains order extending time to answer bill, such would be equivalent to general appearance. If a defendant, who has taken no steps to question the jurisdiction of the court over his person, moves for and obtains and order extending his time to answer the bill, this would constitute a doing of an act in the progress of the cause and in recognition of the jurisdiction of the court over the person of the defendant which would be equivalent to a general appearance.

Prosecution of appeal from final decree on merits operates as general appearance when cause is remeanded to court below. 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.

Appeal from interlocutory order, overruling objection to jurisdiction of person, interposed on special appearance for such purpose alone, held not general appearance (Rev. Gen. St. 1920, § 3169). Where an appeal is taken from an interlocutory order, overruling the objection to the jurisdiction of the person, which has been interposed by the defendant on a special appearance for that purpose alone, the right to review such interlocutory order by separate appeal is conferred by section 3169, Rev. Gen. St., and the taking of such an appeal does not operate as a general appearance.

Appeal from Circuit Court, Duval County; DeWitt T. Gray, judge.

COUNSEL

Charles A. Powers, of Jacksonville, for appellant.

L. S. Gaulden, of West Palm Beach, for appellee.

OPINION

BROWN C.J.

The appellee, Frank J. Ortell, exhibited his bill in the nature of a bill of review against the appellant, Marie Phyllis Ortell, in the circuit court of Duval county, seeking to review and annul a decree of divorce obtained a few months previously in said court by Marie Phyllis Ortell against said appellee, upon the ground that the complainant in said suit for divorce had not been a bona fide resident of the state of Florida for two years next preceding the filing of said bill for divorce. In this bill for review, the residences of both parties were alleged to be in the city and state of New York. However, it is averred elsewhere in the bill that the said Marie Phyllis Ortell had been a bona fide resident of the city and state of New York from A. D. 1911 to November 10, 1920, at which time she left her husband in New York and went to Jacksonville, Fla., where her mother lived, promising to return later, but that she did not return and refused to return. The bill prayed personal process by subpoena against the defendant, appellant here. Thus it is probable that the averments of the bill impliedly admit that the defendant had ceased to be an actual resident of New York before the bill was filed. Perhaps the averment that she was a resident of New York City was based upon the theory that, as alleged in the bill, the decree of divorce was void for want of jurisdiction, and that the domicile of the wife continued, in contemplation of law, to be that of the husband. The sheriff made return on the subpoena to the effect that:

'After diligent search the defendant, Marie Phyllis Ortell (in Hendersonville, North Carolina) was not to be found in Duval county Florida.'

A few days later the solicitor for the complainant made and filed an affidavit for service by publication, which reads in part as follows:

'That affiant believes that said defendant, Marie Phyllis Ortell, is a resident of the city of New York, in the state of New York, and that her present mail address is Hendersonville, N. C.; that said Marie Phyllis Ortell is more than 21 years of age; and that there is no person in the state of Florida the service of a subpoena upon whom would bind the said defendant, Marie Phyllis Ortell.'

The clerk thereupon made an order of publication, which was published for four consecutive weeks, and certificate of publication, posting, and mailing of copies of said order was made and filed.

Upon the date she was required by said order of publication to appear, the appellant filed a special appearance for the purpose only of moving the court to vacate the order requiring defendant to enter her general appearance to the bill of complaint, and a few days thereafter appeared specially for the purpose of moving the court to vacate said order and to quash the pretended service thereof upon several grounds: (1) That the city of New York includes a large area of lands with a population of more than 5,000,000, and that the affidavit did not set forth the street address at which it is pretended that the defendant resided in said city; (2) that said affidavit did not set forth that the pretended residence of the defendant in the city of New York state of New York, specified as particularly as was then known to the affiant's solicitor the place or location within said city of New York at which defendant is alleged to have then resided; (3) that at the time the affidavit was made by complainant's solicitor the complainant actually knew that the defendant's mail address was not Hendersonville, N. C., but that she was actually residing within the state of Florida at the time and was then in said state; and (4) that the newspaper designated in the order of the court was not a newspaper of general circulation throughout the...

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