Reynolds v. Reynolds

Decision Date27 December 1933
Citation113 Fla. 361,152 So. 200
PartiesREYNOLDS v. REYNOLDS.
CourtFlorida Supreme Court

On Rehearing Jan. 15, 1934.

En Banc.

Suit by Cassie C. Reynolds against William H. Reynolds, wherein I. W Phillips & Co. were garnished. From an adverse order defendant appeals.

Order affirmed. Appeal from Circuit Court Hillsborough County; L. L. Parks, judge.

COUNSEL

Zewadski & Pierce, of Tampa, for appellant.

O. P Hilburn, of Tampa, for appellee.

OPINION

ELLIS, Justice.

The question attempted to be presented in this case is: Are wages which are due to the head of a family residing in this state exempt from garnishment to satisfy a debt due to his divorced wife under a decree of divorce awarding to the complainant wife a specific sum of money to be paid in installments in settlement of certain property rights claimed by her in the divorce suit?

Mrs. Cassie Reynolds, in May, 1932, obtained a decree of divorce against her husband upon a bill of complaint charging him with adultery in most general terms. The defendant suffered a default to be taken against him on the return day of the subpoena, and four days afterwards testimony was taken, which included a stipulation between the parties in which the defendant agreed that a decree should be entered against him declaring that the sole and undivided ownership of the homestead, consisting of a lot and tenements in Mackmay subdivision in Hillsborough county, free and clear of all rights or claims on his part, be in the complainant, and that, in addition thereto, he should be decreed to pay the complainant the sum $900 in installments of $25 per month beginning January 1, 1932.

Five days after the return day of the subpoena and on the day the testimony in the cause including the written stipulation between the parties was filed, the court signed a decree divorcing the parties a vinculo matrimonii and decreeing the property rights in the homestead and the payment of money by the defendant in accordance with the terms of the stipulation.

The decree does not appear to have been recorded in the chancery order book. See section 4948, Comp. Gen. Laws 1927.

Mrs. Reynolds on the 31st day of August, 1932, applied by written motion to the chancellor for a writ of garnishment to be directed to I. W. Phillips & Co. because she said that her former husband had failed to make the July and August, 1932, payments on the decree and she claimed $25 as attorney's fee in addition thereto. The order for a writ of garnishment as prayed for was signed thirty days before it was applied for, and filed on the day it was applied for.

The writ was issued on the 31st day of August, 1932, and on the 14th day of September the defendant by affidavit set up a claim of exemption of the money due him by Phillips & Co. on the grounds that the money was due for 'personal services rendered and personal labor' by the defendant, and that he was the head of a family residing and living in Marion county, Fla. The garnishee entered its appearance. The solicitor for the complainant by affidavit affirmed that the defendant was not entitled to the exemption. The defendant gave a bond for the release of the garnishment on the 3d of October, 1932, and on the same day the court ordered a release of the property and discharge of the garnishee.

On the 6th day of May, 1933, the court signed an order adjudging the defendant to be not entitled to the exemption, and that the complainant 'have and recover' from the defendant $50 and costs. That order also does not appear from the record to have been recorded in the chancery order book.

A week later the defendant entered his appeal from the order, and the same was recorded, although no certificate of such record appears in the transcript. The order of the judge directing a writ of garnishment was signed on the 1st day of August, 1932, as appears from the transcript, but it does not appear to have been recorded, although it does appear to have been filed and docketed thirty days later on the date the motion for the order was made.

Whether the date of the signing of the order for the writ was a clerical error, a mere misprision of the judge who signed it or the clerk who copied it for the transcript, no one of course can know from an inspection of the transcript. In any event, neither that order nor the final decree of divorce appears to have been recorded in the chancery order book, but the statute definitely and expressly provides that no process shall be issued or other proceedings had on any final decree or order until the same shall have been signed and recorded in the chancery order book of the court. See section 4948, Comp. Gen. Laws, supra.

It follows, therefore, that the order for a writ of garnishment and the issuing of the writ were without authority of law, and, as the order for the writ was itself not recorded, the writ considered as a process or proceeding had on the order was void and of no effect.

All the orders and proceedings on the decree therefore were without authority of law and in direct violation of the affirmative commands of the statute. They should be set aside and annulled.

So the order appealed from is reversed.

DAVIS, C.J., and WHITFIELD, TERRELL, and BUFORD, JJ., concur.

On Rehearing.

ELLIS Justice.

A petition for rehearing in this case on behalf of both appellant and appellee directs our attention to certain statements in the opinion filed on December 27, 1933, relating to the failure of the record to disclose that the final decree of divorce, an order directing a writ of garnishment, an order adjudging the defendant to be not entitled to the exemption, and the entry of notice of appeal by the defendant, were recorded in the chancery order book as the law requires.

We are due and hereby make to counsel for both appellant and appellee an apology for that egregious error. The record does disclose that the decree and each order as well as the notice of entry of appeal were duly recorded. It is unnecessary to explain how the certificate of record of the decree, orders and notice of entry of appeal were overlooked, as we have decided that the manner in which the evidence of such record was exhibited by the transcript was a sufficient compliance with the rule prescribed for the making of transcripts of record for the Supreme Court. We regret exceedingly the error we committed into which we were possibly led by the entry in the...

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    • United States
    • Florida Supreme Court
    • January 12, 1934
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    • United States
    • Florida Supreme Court
    • March 29, 1940
    ... ... way connected with any lottery drawing, scheme or ... device.' See Balan v. Wekiwa Ranch, 97 Fla. 180, ... 122 So. 559; Reynolds v. Reynolds, 113 Fla. 361, 152 ... It is ... true that we have held, and rightly so, under the previous ... section of our statutes ... ...
  • B & B Super Markets, Inc. v. Metz
    • United States
    • Florida District Court of Appeals
    • December 17, 1971
    ...erstwhile per curiam affirmance in this case. But like the late Justice Ellis, in his opinion granting rehearing in Reynolds v. Reynolds, 1933, 113 Fla. 361, 152 So. 200, text 201, we can feel justifiably contrite in rectifying such 'egregious error' by rescinding our former decision and re......
  • Robinson v. Robinson
    • United States
    • Florida Supreme Court
    • May 16, 1944
    ... ... No ... presumption may be indulged in the support of the language ... she chose ... We are familiar ... with the case of Reynolds v. Reynolds, 113 Fla. 361, ... 152 So. 200, 202, where the court considered proceedings in ... garnishment to enforce the payment of installments ... ...
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