Quigley v. Cremin

• Decision Date: 05 July 1927
• Citation: 113 So. 892,94 Fla. 104
• Parties: QUIGLEY et al. v. CREMIN.
• Court: Florida Supreme Court

113 So. 892

94 Fla. 104

QUIGLEY et al. v. CREMIN.

Florida Supreme Court

July 5, 1927

En Banc.

On rehearing.

Former opinion modified.

For former opinion, see 109 So. 312.

Syllabus by the Court

SYLLABUS

In equity, defense of res judicata may be raised by demurrer if complaint sufficiently shows facts supporting it. In equity the defense of res adjudicata may be raised by demurrer where the facts supporting it sufficiently appear from the bill of complaint.

Test of jurisdiction is whether tribunal had power to enter on inquiry in question, not whether method was regular and its findings right or its conclusions legal. The test of jurisdiction is whether the tribunal had the power to enter upon the inquiry in question, and not whether its method was regular, its findings right, or its conclusions in accordance with law.

'Want of jurisdiction of subject-matter' renders judgment void and open to collateral attack, but 'erroneous exercise of jurisdiction' makes verdict reversible on appeal or writ of error. Want of jurisdiction of the subject-matter is to be distinguished from an erroneous exercise of jurisdiction. In the former case, the want of jurisdiction renders the judgment void and open to collateral attack, whereas an erroneous exercise of jurisdiction merely renders the verdict open to reversal on appeal or writ of error.

Every presumption favors regularity and correctness of decree court's adjudication that it has acquired jurisdiction is not conclusive against affirmative showing to contrary. While every presumption favors the regularity and correctness of a decree, still an adjudication by the court that it has acquired jurisdiction will not be conclusive against an affirmative showing of a failure to take the necessary steps to confer such jurisdiction.

Constructive or substituted process valid as to person sui juris is binding on persons non compos mentis, infants, and those under disability, in absence of exception (Rev. Gen. St 1920, §§ 3111, 3112, 3115; Acts 1921, c. 8465; Acts 1925, cc. 10102, 11364). Constructive or substituted process, valid and sufficient as to persons sui juris, applies to and is binding upon persons non compos mentis, infants, and persons under other legal disability, unless an exception be created in favor of the classes last named.

Statutory process for constructive service on nonresidents and other designated absent defendants is binding on all persons within designated classes, whether sui juris, or infants, or non compos mentis; complaint attacking validity of former decree because of invalidity of process on account of insanity and nonresidence of person served, held insufficient on general demurrer (General Chancery Procedure Act Nov. 7, 1828; Rev Gen. St. 1920, §§ 3111, 3112, 3115; Acts 1921, c. 8465; Acts 1925, cc. 10102, 11364). Since the General Chancery Procedure Act of November 7, 1828 (Duval's Laws 1839, p. 128), the statutes of this state have afforded a means of effecting constructive service upon nonresidents and the classes of other absent defendants designated in such statutes, which process, when properly invoked and employed, is binding upon and applicable alike to all persons within the designated classes of defendants, whether such persons be sui juris, or infants, or persons non compos mentis. Anything said to the contrary in Peacock v. City of Miami (Fla.) 109 So. 458, is hereby modified to accord with the rule stated herein and in McDaniel v. McElvy (Fla.) 108 So. 820.

Clerk's filing certificate as to compliance with statute providing for constructive service held essential to entry of pro confesso decree; in absence of decree pro confesso, clerk's failure to file certificate of compliance with statute providing for constructive service does not necessarily render final decree invalid, if steps affording due process to defendant were taken (Rev. Gen. St. 1920, §§ 3111, 3154; Acts 1885, c. 3589, § 2). The filing of a certificate by the clerk as to compliance with section 1866, Gen. Stats. 1906, now section 3111, Rev. Gen. Stats. 1920, is an essential jurisdictional prerequisite to the entry of a decree pro confesso upon constructive service, but where no decree pro confesso is entered the mere failure of the clerk to file such certificate is not necessarily fatal to the validity of the final decree if the steps necessary under the statute to afford due process to the defendant were in fact taken.

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

COUNSEL

Evans & Mershon, of Miami, for appellants.

Shutts & Bowen, of Miami, for appellee.

OPINION

STRUM J.

This is a suit in equity, the purpose of which is to set aside a final decree rendered in a former suit and to quiet the title to the lands in controversy in the complainant in this suit. The matter comes before us upon an appeal from an order overruling a general demurrer to the bill of complaint. The parties will be designated as they were in the court below.

The bill of complaint in this suit alleges in effect that the complainant, Margaret Cremin, is the owner in fee simple of described lands; that on July 1, 1915, a tax deed covering said lands was issued to one R. Welborn; that by mesne conveyances the title or interest of said Welborn in said lands passed to C. H. Reeder, one of the defendants herein, who thereafter conveyed part of said lands to the defendant Harry Quigley and the remainder mainder to the defendant Jerry Errett. The bill further alleges that prior to his conveyances to Quigley and Errett, and on March 30, 1916, Reeder, as complainant, instituted a suit in equity against Margaret Cremin, as defendant, to quiet the title of the said Reeder to said lands, based upon said tax deed, as against said Margaret Cremin, the owner of the record title. A final decree was entered in that suit on December 30, 1916, quieting the title to said lands in Reeder as against any right or title of the said Margaret Cremin, and further decreeing the title of the said Margaret Cremin to be invalid and a cloud upon the title of said Reeder. The bill of complaint in the present suit, brought by Margaret Cremin as complainant, charges that the tax deed aforesaid and the claim of title of Reeder and the other defendants herein based upon said tax deed, as well as the final decree of December 30, 1916, entered in the former suit brought against this complainant by Reeder, are each and every void and of no effect and seeks to have the same set aside and canceled and the title of the complainant in this suit, Margaret Cremin, quieted and established as against Reeder and his privies claiming under said tax deed and under the former decree.

The tax deed in question is alleged in the bill of complaint in this cause to be void on account of certain designated deficiencies in the procedure culminating in the issuance of said deed.

The final decree in the former suit, entered on December 30, 1916, is alleged by the bill of complaint in this case to be void and of no effect because:

'At the time of the commencement of said suit (that is, the former suit) in the circuit court of the Eleventh judicial circuit of Florida in and for Dade county, in chancery, by C. H. Reeder as complainant against this complainant (Margaret Cremin) as defendant, and continuously thereafter until long after the rendition and entry of the final decree in said proceedings, this complainant was an inmate of and was confined in the Rhode Island State Hospital for the Insane to which she had been legally committed after an adjudication of her insanity through legal proceedings in said state of Rhode Island; that during said period of her insanity, no person had been designated or appointed in the state of Florida as guardian of the property of this complainant; that she was committed to said hospital on December 10, 1912, and was discharged therefrom in February, 1921; that in the said proceedings wherein the said C. H. Reeder was complainant as aforesaid, no personal service of process was had upon this complainant, but that the complainant in said proceedings undertook and attempted to serve process upon this complainant, the defendant in said proceedings, by publication pursuant to the statute in such cases made and provided, and this complainant says that such publication or service of process upon her in the proceedings aforesaid were insufficient and invalid in that the clerk of the circuit court of Dade county, Fla., failed to file with the papers in said cause a sufficient certificate (as required by section 1897, Gen. Stats. 1906, now section 3154, Rev. Gen. Stats. 1920); that compliance with said statute (section 1866, Gen. Stats. 1906, as amended by chapted 6481, Acts of 1913, now section 3111, Rev. Gen. Stats. 1920) had been had, stating particularly the manner and time of such compliance as required by the statute in such case made and provided, in that said clerk failed to certify that a copy of the order of publication was posted at the courthouse door within 20 days after making said order (as required by section 1866, Gen. Stats. 1906, as amended by chapter 6481, Acts of 1913, now section 3111, Rev. Gen. Stats. 1920); wherefore this complainant says that the court, in said proceeding (that is, the former suit), never obtained jurisdiction over the person or property of this complainant in said cause.'

The demurrer questions the sufficiency of the bill of complaint upon the ground that it affirmatively appears by the bill that there has been a former competent adjudication of the same subject-matter as between these parties, and upon the further ground that the allegations of the bill of complaint do not allege in issuable form sufficient facts to avoid the former decree upon...