Ringling v. Ringling

• Decision Date: 19 September 1934
• Citation: 117 Fla. 423,158 So. 125
• Parties: RINGLING v. RINGLING.
• Court: Florida Supreme Court

158 So. 125

117 Fla. 423

RINGLING v. RINGLING.

Florida Supreme Court

September 19, 1934

Rehearing Denied Nov. 21, 1934.

En Banc.

Action by John Ringling against Emily Ringling. From an order overruling and denying motion to quash constructive service defendant appeals, and plaintiff moves to dismiss the appeal.

Motion to dismiss denied, and order affirmed.

On Petition for Rehearing. Appeal from Circuit Court, Sarasota County; Paul C. albritton, judge.

COUNSEL

Loftin Stokes & Calkins, of Miami, for appellant.

Henry L. Williford and James E. Kirk, both of Sarasota, for appellee.

OPINION

PER CURIAM.

This case is before us on motion to dismiss an appeal on the ground that the same is frivolous. The appeal is from an order overruling and denying motion to quash constructive service.

The affidavit for publication of constructive service was in the following language, to wit:

'In the Circuit Court of the Twenty Seventh Judicial Circuit Court of Florida, in and for Sarasota County. In Chancery.

'John Ringling, Plaintiff,

v.

Emily Ringling, Defendant.

'Divorce

'Affidavit for Constructive Service

'State of Florida, County of Sarasota.

'Before me, the undersigned authority, personally appeared John Ringling, who first being sworn, deposes and states that Emily Ringling, defendant in the above entitled cause is a resident of the State of Florida, and that the said Emily Ringling has been absent from the State of Florida for more than sixty days next preceding the application for the Order of Publication and that there is no person in the State of Florida the service of a subpoena upon whom would bind the said defendant. That the address of said Emily Ringling, as particularly as is known, or can be ascertained by Affiant is 270 Park Avenue, New York City. That the affiant believes that the said defendant Emily Ringling, is over the age of twenty-one years.

'John Ringling

'Sworn and subscribed to before me this 3rd day of March A. D. 1934.

'Mable Harkleroade,

'Notary Public [Seal.]'

The affidavit is sufficient to comply with the provisions of section 3111, Rev. Gen. St., section 4895, Comp. Gen. Laws. While the statute only requires the affidavit to allege the 'belief' of the affiant that the defendant, being a resident of this state, has been absent from the state for more than sixty days next prior to the date of the filing of such affidavit, and that there is no person in the state of Florida service of subpoena upon whom would bind the defendant, the affidavit makes the allegation as a definite existing fact. This is certainly tantamount to alleging the belief of affiant as to such facts.

The contention is that the service is invalid because, as a matter of fact, the defendant had been within the state of Florida within sixty days before the date of filing of the affidavit. This fact was established by proof in support of the motion to quash. The uncontradicted evidence, however, is that the plaintiff did not know this was a fact, and that he verily believed the allegations of the affidavit to be true, and that he made the same in good faith. We think this is all the statute requires.

There is no contention that the defendant or any one service of subpoena upon whom would bind the defendant was within the state of Florida at the time the affidavit was filed. If the defendant was beyond the territorial limits of Florida, and there was no one in the state of Florida service of subpoena upon whom would bind the defendant, and the other allegations contained in the affidavit were made in good faith and verily believed by affiant to be true at the time the affidavit was filed, there was no error in the order appealed from.

Where it appears from an inspection of the record on a motion to dismiss an appeal on the ground that the same is frivolous that there is no error in the order from which appeal is taken, but it does not appear that the appeal is entirely frivolous, the order will be then affirmed and the cause disposed of here.

It is so ordered.

Affirmed.

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

On Petition for Rehearing.

PER CURIAM.

A bill for divorce on grounds of extreme cruelty and habitual indulgence in violent and ungovernable temper towards complainant was brought in Sarasota county, on the west coast of Florida, by John Ringling against Emily Ringling, his wife. There was publication of constructive service on the defendant wife, who specially appeared and moved to quash the service of process. This appeal was taken from an order denying such motion to quash.

On March 3, 1934, complainant filed the affidavit upon which the publication of constructive service of process was made stating that 'defendant * * * is a resident of the State of Florida, and that the said Emily Ringling has been absent from the State of Florida for more than sixty days next preceding the application for the order of publication, and that there is no person in the State of Florida, the service of a subpoena upon whom would bind the said defendant. That the address of said Emily Ringling, as particularly as is known, or can be ascertained by affiant, is 270 Park Avenue New York City. That the affiant believes that the said defendant, Emily Ringling, is over the age of twenty-one years.'

As stated in the former opinion herein, while the affidavit of complainant dated March 3, 1934, on which constructive service of process was published, stated positively that the 'said Emily Ringling has been absent from the State of Florida for more than sixty days next preceding the application for the Order of Publication,' the statute (Comp. Gen. Laws 1927, § 4895) only requires a statement of 'the belief of the affiant' that the defendant had been so absent from the state. Consequently, it was necessary to prove only reasonable grounds for the belief of the affiant as to the stated fact. When the sufficiency of the affidavit is duly challenged, the statement as to the belief of the affiant must be shown to 'be truthful, free from mala fides, and based on something tangible or perceptible in fact, and not merely nebulous or fanciful.' See Balan v. Wekiwa Ranch, 97 Fla. 180, 122 So. 559, and on rehearing, pages 189-193 et seq. of 97 Fla., 122 So. 562.

'While allegations of a categorical nature which follow the words of the statute are sufficient as a predicate for the issuance of the order of publication, the chancellor is not thereby precluded from requiring appropriate proof of those allegations, as any other allegations, as a prerequisite to the entry of a decree. What and how much evidence the court shall require to satisfy it upon the question of due diligence in these matters rests largely with the court granting the order. Extraordinary steps to ascertain the whereabouts of the party are not required. But judgments * * * should not be rendered without actual notice, when by the exercise of reasonable diligence actual notice can be given. Reasonable diligence in such matters is an honest effort, and one appropriate to the circumstances, to ascertain whether actual notice may be given, and, if so, to give it. Such effort, however, need not embrace a search in remote parts of the state (Jacob v. Roberts, 223 U.S. 261, 32 S.Ct. 303, 56 L.Ed. 429); and it is not essential that all possible or conceivable means should be used.' McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 832, 51 A. L. R. 731.

Grounds of the motion to quash the constructive service are:

'1. The affidavit of the plaintiff filed herein on the 3rd day of March, 1934, on which the order of publication was made by the clerk of said court requiring this defendant to appear on the 4th day of April 1934 to the bill for divorce filed herein, is untrue, in the particular wherein it is stated that this defendant has been absent from the State of Florida for more than sixty days next preceding the application for the order of publication therein.

'2. The defendant was not absent from the State of Florida for more than sixty days next...