Saddler v. Smith

• Court: Florida Supreme Court
• Writing for the Court: PARKHILL, J.
• Citation: Saddler v. Smith, 54 Fla. 671, 45 So. 718 (Fla. 1908)
• Decision Date: 13 January 1908
• Parties: SADDLER et al. v. SMITH.

45 So. 718

54 Fla. 671

SADDLER et al. v. SMITH.

Florida Supreme Court, Division B.

January 13, 1908

Appeal from Circuit Court, Taylor County; Bascom H. Paler, Judge.

Bill by Redden Smith against J. N. Saddler and others. Decree for complainant, and defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

While the words et al. are incapable of standing in the place of the names of parties required by law to be stated in a subpoena or writ of error, they may be used in indorsing the title of the cause on the copy of subpoena, when there is no statute or rule requiring the names of the parties to be indorsed thereon.

The special statute of limitations as provided by section 400 of the Revised Statutes of 1892, or section 591 of the General Statutes of 1906, will not apply to a suit to set aside a tax deed, where the calls in the deed are materially different from the lands described on the assessment roll and sold by the collector.

COUNSEL Davis & Sandford, for appellants.

Hendry & McKinnon, for appellee.

OPINION

PARKHILL J.

On the 26th day of July, appellee, who will be called the complainant, filed his bill of complaint in the circuit court for Taylor county against appellants, except the Interstate Lumber Company, to set aside certain deeds and leases as clouds upon his title to certain land in said county.

On the 3d day of September the defendants entered a special appearance and filed a motion to set aside, quash, and vacate the subpoena, the service thereof, and the return thereon. This motion was overruled.

On the 15th day of February, 1907, complainant filed an amended bill. A demurrer to this bill was overruled on the 11th day of May, and from this order defendants appealed.

The first assignment of error is based on the action of the court in overruling the motion to quash and set aside the subpoena its service, and return thereon. The only ground of this motion argued is the first: 'Because said subpoena in chancery does not have the title of the cause indorsed thereon as required by law, neither did the copy of subpoena served on these defendants have the title of the cause indorsed thereon.'

The objection that the title of this cause is not indorsed upon the subpoena is not argued and will be considered as abandoned. The copy of the subpoena served upon defendants has the following indorsements: 'In the Circuit Court Third Judicial Circuit of Florida. Taylor County. In Chancery. Redden Smith v. D. G. Malloy, J. H. Malloy, et al. Copy of Subpoena. To 1st Monday in September, 1906. Hendry & McKinnon, Complainant's Solicitor.'

It is argued that this indorsement does not comply with the provisions of section 1865 of the General Statutes of 1906 which was 1412 of the Revised Statutes of 1892, as follows 'Personal service of process and of orders and decrees in chancery, to be made upon parties to be served natural or corporate, shall be governed by the provisions of law applicable to the service of a writ of summons ad respondendum. The copy served shall have indorsed thereon the name of the court from which the subpoena issued, the title of the cause, the words 'copy of subpoena,' and the name of the complainant's solicitor.' It is insisted that the title of the cause is not indorsed upon the copy served, because the abbreviations 'et al.' are employed to designate some of the parties defendant.

The words 'et al.' are in common and everyday use in style of cases and entries on the minutes and docket of courts, and are known to mean 'and another,' or 'and others,' as the case may be. Renkert v. Elliott, 11 Lea (Tenn.) 235, text 242. The statute only requires the title of the cause to be indorsed on the copy served. The statute does not require the names of the parties to be indorsed on the copy of the subpoena. The names of all the defendants are set out in the body of the subpoena, and in the copy also. Where there are several parties defendant, it would not be sufficient to give the name of one defendant in the body of the subpoena or copy, followed by the words 'et al.' Lyman v. Milton, 44 Cal. 630. And so we have held that in a writ of error or appeal all parties thereto must be named, and cannot be included in the words 'et al.' State ex rel. Andreu v. Canfield, 40 Fla. 36, 23 So. 591, 42 L. R. A. 72; Continental Nat. Building & Loan Ass'n v. Miller, 41 Fla. 418, 26 So. 725. See, also, 16 Cyc. 815. While the words 'et al.' are incapable of standing in the place of the names of parties required by law to be stated in a subpoena or writ of error, they may be used in indorsing the title of the cause on the copy of subpoena, when there is no statute or rule requiring the names of the parties to be indorsed thereon. The words 'et al.,' in many instances, are used in stating the title of causes, illustrating the everyday use of these words for this purpose. The title of this cause on our own docket here appears as 'J. N. Saddler et al. v. Redden Smith.'

The motion to quash the service was properly overruled.

On the 15th day of February, A. D. 1907, the complainant filed his amended bill of complaint, making the Interstate Lumber Company, a corporation, a party defendant.

The amended bill alleges that the complainant is the owner in fee simple and in possession of the following described lands situate in Taylor county, Florida, to wit: E. 1/2 of S.W. 1/4 of section 4, township 6 S., range 7 E.--and sets up as a cloud upon his title to this land certain deeds and leases to defendants of the said described land; said deeds and leases to defendants all being based upon a certain tax deed. The bill and the copy of the tax deed annexed thereto show that the land sought to be conveyed by the tax deed is the E. 1/2 of the S. 1/4 of section 4, in township 6 S., of range 7 E. The deed was...