Slaughter v. Abrams

• Decision Date: 13 March 1931
• Citation: Slaughter v. Abrams, 101 Fla. 1141, 133 So. 111 (Fla. 1931)
• Parties: SLAUGHTER v. ABRAMS.
• Court: Florida Supreme Court

133 So. 111

101 Fla. 1141

SLAUGHTER v. ABRAMS.

Florida Supreme Court, Division A.

March 13, 1931

Suit by Harry Abrams against G. M. Slaughter and others.From a final decree, defendants appeal.

Reversed and cause remanded.

Syllabus by the Court.

SYLLABUS

The allegation, 'Your orator would further show unto the Court that the address of A. E. Waller, other than ----- New York State, is unknown to your orator, but your orator alleges that he is over the age of twenty-one years, and that there is no one in the State of Florida known to your orator service of subpoena upon whom would bind said defendant,' is insufficient to warrant an order of publication to effect constructive service of process.

The affidavit to constitute the basis for constructive service by publication must substantially comply with the statute.

It is irregular and improper practice to refer a suit in chancery to a master for the purpose of taking testimony therein before all the issues are properly made up.

Appeal from Circuit Court, Orange County; Frank A Smith, judge.

COUNSEL

Kay Adams, Ragland & Kurz, of Jacksonville, and W. A. Pattishall and Newell & Boyer, all of Orlando, for appellants.

Peterson, Carver, Langston & O'Quin, of Lakeland, for appellee.

OPINION

PER CURIAM.

One A E. Waller was made defendant in a bill of complaint to foreclose a mortgage.An order of publication was made directed to Waller.The order of publication was based upon the following allegation contained in the bill of complaint:

'Your orator would further show unto the Court that the address of A. E. Waller, other than ----- New York State, is unknown to your orator, but your orator alleges that he is over the age of twenty-one years, and that there is no one in the state of Florida known to your orator service of subpoena upon whom would bind said defendant.'

After the order was published and proof thereof was filed, decree pro confesso was entered against Waller.Thereafter final decree was entered.From the final decree appeal was taken.

The allegation in the bill was insufficient to constitute a basis for constructive service by publication.Ortell v. Ortell,91 Fla. 50, 107 So. 442;Thomson v. Thomson,94 Fla. 1046, 115 So. 496.The affidavit to constitute the basis for constructive service by publication must substantially comply with the statute.

It follows that no valid decree pro confesso, of final decree could have been entered against Waller, as he did not appear in the cause.It has been held by this court that it is irregular and improper practice to refer a suit in chancery to a master for the purpose of taking testimony therein before all the issues are properly made up.Worley et al. v. Dade County Security Co.,52 Fla. 666, 42 So. 527;Sarasota Ice, Fish & Power Co. et al. v. Lyle & Co.,53 Fla. 1069, 43 So. 602;Grimsley et al....