Peacock v. City of Miami

• Decision Date: 27 July 1926
• Citation: 109 So. 458,92 Fla. 360
• Parties: PEACOCK v. CITY OF MIAMI et al.
• Court: Florida Supreme Court

109 So. 458

92 Fla. 360

PEACOCK v. CITY OF MIAMI et al.

Florida Supreme Court, Division B.

July 27, 1926

Suit by John Palmer Corell against the City of Miami and others, in which, on the death of plaintiff, Harry B. Peacock, as administrator, was substituted as complainant. From an order sustaining a general demurrer to the complaint and dismissing the bill, complainant appeals.

Reversed.

Brown C.J., dissenting.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

John T. G. Crawford, of Jacksonville, and J. A. Herring, Jr., of Tampa, for appellant.

J. W. Watson, Jr., and Botts, Davis, Davis & Field, all of Miami, for appellees.

OPINION

BUFORD J.

This appeal is from an order sustaining a general demurrer and special demurrers to the bill of complaint and dismissing the bill.

Demurrer was filed by the defendant.

While the demurrers were pending, the original complainant, John Palmer Corell, died, and the suit was revived by an order of court as follows:

'This cause coming on this day to be further heard upon the motion of Harry B. Peacock as administrator of the estate of John Palmer Corell, deceased, and George Philip Corell and Adam Wesley Corell for an order reviving the said cause in the names of said movants as complainant, and it apppearing to the court that the said John Palmer Corell, the original complainant herein, has departed this life intestate, leaving him surviving as his only heirs at law his brothers, George Philip Corell and Adam Wesley Corell, and it further appearing that the said Harry B. Peacock has been duly appointed, and is now, the duly qualified and acting administrator of the estate of said John Palmer Corell, deceased, and it further appearing that said cause survived the said John Palmer Corell, and now exists in the said movants, and the court being otherwise fully advised of its judgment in the premises:

'It is ordered and adjudged that the said cause be, and it is hereby, revived, and the said Harry B. Peacock, as administrator of the estate of said John Palmer Corell, deceased, and the said George Philip Corell and the said Adam Wesley Corell, are hereby substituted as parties complainant in said cause.

Ordered that the said cause as revived do proceed in due course.

'Done and ordered in chambers at Miami, Fla., this 21st day of October, A. D. 1924.'

The case later coming on to be heard on the demurrers to the bill, the following order was made, to wit:

'This cause came on to be heard upon the general and special demurrer of the city of Miami to complainant's bill of complaint, and, it appearing to the court that since the institution of this suit John Palmer Corell, complainant, has died, and that Harry B. Peacock was appointed administrator of the estate of John Palmer Corell, deceased, and that, upon suggesting the death of the said John Palmer Corell, an order was made and entered whereby the court revived said cause in the name of the administrator and in the name of George Philip Corell and Adam Wesley Corell, who were substituted as parties complainant in said cause, and it further appearing that the said special and general demurrers were duly set down for argument, and were argued before the court by the solicitors for the respective parties, upon consideration thereof, and the court being advised of its judgment in the premises:

'It is ordered, adjudged, and decreed that the special demurrers of defendant to complainant's bill of complaint as revived be, and the same is hereby, sustained.

'It is further ordered, adjudged and decreed that the general demurrer of the defendant to complainant's bill of complaint as revived be, and the same is hereby, sustained.

'It is further ordered, adjudged, and decreed that complainant's bill of complaint be, and the same is hereby, dismissed at cost of complainants to be taxed by the clerk of circuit court.

'Done and ordered in chambers, at Miami, Fla., this 20th day of July, A. D. 1925.'

From this order appeal was taken, and errors were assigned as follows:

'(1) The court erred in sustaining the general demurrer of the defendant city of Miami.

'(2) The court erred in sustaining the special demurrers of the defendant city of Miami.

'(3) The court erred in dismissing the bill of complaint.'

By stipulations by the parties the record of foreclosure proceedings referred to in the bill of complaint were considered by the court in arriving at the conclusions resulting in the orders sustaining the demurrers, and a transcript of these proceedings is made aprt of the record before this court.

In reviewing the order of the circuit court, we shall deal with the two main questions presented by this appeal. The first is whether or not the decree of foreclosure was void as to the infant defendant John Palmer Corell.

The other is whether or not John Palmer Corell was shown by the allegations of the bill of complaint to have been guilty of such laches as to estop him at the late day of the filing of his bill of complaint from ascertaining his rights.

This is a suit brought by the complainant founded upon the title to real property, and, under the statutes of this state (section 2933 and 2937, Revised General Statutes of Florida), the suit could be maintained at any time within 7 years after the complainant reached the age of 21 years. The bill alleges that the suit was brought within that time, and also alleges, in effect, that the suit was brought as soon as complainant had learned of the facts and circumstances alleged in his bill of complaint. Therefore we must conclude that the bill is not subject to demurrer upon the ground that the complainant has been guilty of such laches as to preclude him from claiming advantage of his legal rights.

Among other things, the following allegations appear in the bill of complaint.

'That on, to wit, December 21, 1910, the said Henrietta Corell, as complainant in said cause, made and subscribed an affidavit to the effect that your orator was then a resident of the state of New York, and said affidavit was filed in said cause on the following day, and thereupon the clerk of the court made an order purporting to require your orator to appear and answer said bill of complaint on February 6, 1911; that said order was never recorded in the minutes of this court or in the chancery order book of this court; that no sufficient proof of the publication of said order and notice was ever filed in said cause; that no proof of the publication of said order and notice was filed in said cause until a day subsequent to the signing of the final decree therein hereinafter mentioned; that no copy of said order was ever posted at the door of the courthouse of said county; that, notwithstanding the matters and things aforesaid, the then judge of this court did, on September 22, 1911, make an order appointing one H. P. Branning, Esq., to be the guardian ad litem for your orator to represent your orator in said cause; that your orator was not consulted as to the appointment of said guardian ad litem, and had no knowledge thereof; that no subpoena or other process of this court was ever issued to, or served upon, said guardian ad litem for your orator, but, notwithstanding that fact, the said guardian ad litem for your orator did on the selfsame day of his appointment as aforesaid, contrary to the rights and interests of your orator, voluntarily file an answer in said cause; that by reason of the acts and doings of said guardian ad litem for your orator as aforesaid the then judge of said court did, on the said selfsame day, make an order in said cause appointing a special master to take testimony therein.'

These allegations of the bill challenge the jurisdiction of the court, in the foreclosure suit referred to, over the person of one of the defendants in that suit who had become the complainant in this suit, and who at the time of the making of the order in the foreclosure suit was 15 years of age. The court, exercising judicial cognizance of its own records, considered the record in the foreclosure suit in connection with the allegations of the bill of complaint and the demurrer thereto with the result heretofore stated.

The order sustaining demurrers to the bill of complaint for want of equity appears to have been error.

The allegations raising the question of jurisdiction of the court (in the foreclosure suit) of the person of the infant defendant herein have been stated. These allegations are supported by reference to the record in that suit.

The record of that suit bristles with the showing of gross irregularities. Aside from these irregularities, there is the basic objection to the validity of the decree that the record fails to show service of process either actual or constructive upon the infant defendant so as to bring such defendant into the jurisdiction of the court.

Prior to the enactment of chapter 5910, Acts of 1909, there was no provision for service of process on a nonresident infant defendant by publication and posting notice. Up to that time the court acquired jurisdiction of an infant defendant by service of process upon the infant, and upon a guardian ad litem appointed by the court. Gibbons v. McDermott, 19 Fla. 852, and cases there cited.

And without a showing, first, that the minor had been personally served with subpoena in the presence of a legal guardian or in the presence of a person who had the care and custody of the minor, second, that a guardian ad litem had been appointed by the court for such minor, and, third, that such guardian ad litem had been served with supoena, the court was without jurisdiction to make orders or decrees affecting the rights...