Reybine v. Kruse

• Court: United States State Supreme Court of Florida
• Writing for the Court: DAVIS, Justice.
• Citation: 174 So. 720,128 Fla. 278
• Parties: REYBINE v. KRUSE.
• Decision Date: 21 May 1937

174 So. 720

128 Fla. 278

REYBINE
v.
KRUSE.

Florida Supreme Court, Division A.

May 21, 1937

Rehearing Denied June 16, 1937.

Suit by Lisel E. Kruse, a widow, against Martha H. Reybine, as executrix of the estate of Alpheus Reybine. From an adverse order, defendant appeals.

Affirmed.

BUFORD, J., and ELLIS, C.J., dissenting. [174 So. 721] [128 Fla. 279] Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

COUNSEL

Snedigar & Baya, of Miami, for appellant.

I. P. Henderson and Frank G. Turner, both of Miami, for appellee.

OPINION

DAVIS, Justice.

We think the order appealed from should be affirmed. The case of Rome Insurance Co. v. Corbett, 66 Fla. 438, 63 So. 833, holds that our constructive service statute (Comp.Gen.Laws 1927, § 4895) is broad enough to apply to any suit in equity pending in our circuit courts. The decision just cited has been approved and followed as applied to a nonresident banking corporation not doing, nor authorized to do, business in Florida. Tax Securities Corporation v. Bird, 114 Fla. 840, 155 So. 155. In Royalty v. Florida National Bank, decided here April 6, 1937, reported in 173 So. 689, we held the constructive service statute of the state to be applicable to an executrix who resided in Chattanooga, Tenn.

[128 Fla. 280] In this case the appellee's bill was filed to vacate and set aside, on the ground of fraud, an order dismissing an action at law. It was properly filed in the circuit court of Dade county, and indeed, under our recent decisions, could have been filed nowhere else. See Bemis v. Loftin, decided here March 23, 1937, reported in 173 So. 683, and cases cited therein.

An equity suit of this character is in the nature of an action in rem directed against the former judgment or decree and is founded upon the initial jurisdiction that the circuit court first acquired over the original action before it was fraudulently induced to be dismissed. In contemplation of law an order procured to be entered dismissing a pending cause is not final if it was procured by fraud, and the original jurisdiction over the dismissed cause as first acquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case, either by means of an independent bill in equity directed against the fraudulently induced order or judgment to have it set aside, or sometimes by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases. See Bryant v. Bryant, 101 Fla. 179, 133 So. 635; Cone v. Cone, 102 Fla. 793, 136 So. 466; State ex rel. Willys. v. Chillingworth, 124 Fla. 274, 168 So. 249; Miami Bank ,& Trust Co. v. Mahlstedt, 107 Fla. 282, 144 So. 659; Kroier v. Kroier, 95 Fla. 865, 116 So. 753; Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694.

A bill in equity to set aside a circuit court judgment dismissing an action at law, when predicated on allegations of extrinsic fraud by reason of which it is prayed that the order or judgment of dismissal of the law action be annulled by an equitable decree for the extrinsic fraud practiced, is [128 Fla. 281] maintainable in this state. Rawlins v. Rawlins, 18 Fla. 345; Shrader v. Shrader, 36 Fla. 502, 18 So. 672; State ex rel. Willys v. Chillingworth, supra.

Such a bill is in the nature of a proceeding in rem against the decree, order, or judgment sought to be so annulled, and the parties to the attacked decree, order, or judgment, if not within the reach of personal service of process, are capable of being reached by constructive service as in any other chancery suit. I know of no exception to this general rule (which is amply sustained by our own decisions), merely because one of the parties to the attacked order, judgment, or decree is a foreign executrix.

The order appealed from should be affirmed, and it is so ordered.

WHITFIELD, P.J., and BROWN, J., concur.

TERRELL, J., concurs in the opinion and judgment. [174 So. 722]

ELLIS, C.J., and BUFORD, J., dissent.

DISSENTING

BUFORD, Justice (dissenting).

On the 12th day of March 1936, Lisel E. Kruse, a widow, filed her bill of complaint against Martha H. Reybine as the executrix of the estate of Alpheus Reybine, deceased.

In her original bill of complaint the complainant alleged that the defendant was a resident of Coconut Grove in Dade county, Fla. She later alleged that defendant was a resident of New Rochelle, N. Y., and she also filed an affidavit for service, by publication, on nonresident defendant Publication was had and the defendant filed a special appearance for the purpose of contesting the jurisdiction of the court over the person of the defendant. She also filed motion to quash the affidavit and order of publication and to quash the return. The grounds of the two motions were identical, as follows:

'1 For aught that it appears to the contrary, this defendant [128 Fla. 282] was appointed as executrix of the estate of Alpheus Reybine, by a State other than the State of Florida, and hence this defendant cannot be sued without the State conferring such authority upon this defendant

'2. For aught that it appears to the contrary, this action does

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