State ex rel. Campbell v. Chapman

• Court: Florida Supreme Court
• Citation: State ex rel. Campbell v. Chapman, 145 Fla. 647, 1 So.2d 278 (Fla. 1941)
• Decision Date: 15 January 1941
• Parties: STATE ex rel. CAMPBELL et al. v. CHAPMAN, County Judge, et al.

1 So.2d 278

145 Fla. 647

STATE ex rel. CAMPBELL et al. v. CHAPMAN, County Judge, et al.

Florida Supreme Court

January 15, 1941

Rehearing Denied March 11, 1941.

En Banc.

Appeal from Circuit Court, Sarasota County; George W Whitehurst, judge.

Singeltary &amp Cornwell, of Bradenton, A. B. Rowe, of Palmetto, Frank Redd, of Sarasota, and J. Ben Fuqua, of Palmetto, for plaintiffs in error.

John F. Burket, of Sarasota, and McKay, Macfarlane, Jackson & Ferguson, of Tempa, for defendants in error.

BROWN, Chief Justice.

This case is before us on writ of error to an order and judgment entered by the Circuit Court in and for Sarasota County, holding that the response of Hon. Forrest Chapman, as Judge of the County Judge's Court of Sarasota County, to the rule nisi in prohibition proceedings which had theretofore been issued by said Circuit Court to said County Judge and to Honoré Palmer, on the petition of plaintiffs in error, constituted a full and sufficient response to said rule, and sustaining the demurrer of Honoré Palmer to the petition for the writ, and ordering that the rule to show cause theretofore issued against said Forrest Chapman as Judge of the County Judge's Court of Sarasota County, sitting as Probate Judge, and against Honoré Palmer, should be and was thereby discharged and the proceedings dismissed.

The petition for appointment as administratrix filed by Louise Palmer in the County Judge's Court of Sarasota County on May 25, 1939 reads as follows:

'Petition for Letters of Administration

'Estate of Potter d'Orsay Palmer deceased.}

In Court of County Judge, Sarasota County, State of Florida

'To the Honorable Forrest Chapman, County Judge of said County:

'Your Petitioner Pluma Louise Palmer respectfully represents that she is a resident of the County of Sarasota and State of Florida, and her Post-Office address is Sarasota, Florida.

'That Potter d'Orsay Palmer late of the County of Sarasota and State of Florida died intestate on the 15th day of May, A.

D. 1939, leaving heirs and legal representatives him surviving, viz:

'Name

'Pluma Louise Palmer

Age 23

Relationship wife

Residence Sarasota, Florida

'That the said deceased died, seized and possessed of an estate, to-wit: Real and Personal of the approximate value of Unascertained at the time of filing this petition situate and being in Sarasota County, Florida, and elsewhere.

'That your petitioner is the wife and sole heir at law of Potter d'Orsay Palmer, deceased.

'Your petitioner prays and she may be appointed administratrix of the estate of said deceased.

'Pluma Louise Palmer

'State of Florida

County of Sarasota}

'The above named Pluma Louise Palmer being by me duly sworn, says that the foregoing petition by her subscribed is true.

'Forrest Chapman

County Judge.'

(Seal)

The order of the County Judge of Sarasota County made in response to said petition reads as follows:

'Order Appointing Administrator

Estate of Potter d'Orsay Palmer}

In County Judge's Court, Sarasota County, State of Florida

'The petition of Pluma Louise Palmer for Letters of Administration on the estate of Potter d'Orsay Palmer, deceased, late of said County, who died intestate on the 15th day of May, 1939, coming on this day to be heard, and it appearing to the Court that the said Pluma Louise Palmer, is the widow and sole surviving heir at law of the deceased Potter d'Orsay Palmer,

'It is, therefore, ordered and adjudged that the said Pluma Louise Palmer be, and is hereby, appointed administratrix of the estate of said deceased and that, upon taking the oath prescribed by law and giving a bond to be approved by the undersigned in the sum of One Thousand ($1000.) Dollars, letters of administration on the estate aforesaid be granted unto the said Pluma Louise Palmer.

'Done and ordered at Sarasota, Florida, this 25 day of May, 1939.

'Forrest Chapman

County Judge.'

(Seal)

The record also shows that the petition for amendment of the original petition for appointment as administratrix, filed in the office of the County Judge of Sarasota County on August 14, 1939, reads as follows:

'In Re: Estate of Potter d'Orsay Palmer deceased}

'To the Honorable Forrest Chapman, Probate Judge

'Comes now Pluma Louise Palmer, by and through her attorney, Frank Redd, and respectfully represents unto the Court that the Petition for Letters of Administration filed in this cause on May 25, 1939, should be amended and prays leave of the Court to amend said Petition so that it should and will contain the following paragraph as fully and completely as if the same were written on the face of the original Petition, to-wit:

'That at the time of the death of Potter d'Orsay Palmer, the said Potter d'Orsay Palmer was domiciled in the City of Bradenton, County of Manatee, State of Florida, and was a resident of the City of Bradenton, County of Manatee, State of Florida, and had approximately Three Thousand ($3000.) Dollars of personal property in his home in the said City of Bradenton.

'Frank Redd

'Attorney for Pluma Louise

Palmer'

'Amendment allowed. Ordered filed this 14th day of August, A. D. 1939.

'Exception noted

'Forrest Chapman

'County Judge'

'State of Florida

County of Sarasota}

'The above named Frank Redd being by me duly sworn, says that the foregoing Amendment to Petition by him subscribed is true.'

'Forrest Chapman

'County Judge'

Plaintiffs in error contend that the petition for letters of administration on the estate of her deceased husband filed by Pluma Louise Palmer in the County Judge's Court of Sarasota County was not sufficient to invoke the power of that court to take jurisdiction, in that said petition did not allege that the decedent was domiciled in Sarasota County at the time of his death. Our attention is called to Section 79 of [1 So.2d 281] the Probate Act of 1933 (Chapter 16103) which among or things, provides:

'Every petition for letters of administration shall be sworn to by the petitioner, his agent, or attorney, and shall contain statements to the best of petitioner's information and belief, showing the domicile of the decedent at the time of his death,' etc.

The record shows that the petition so filed by Pluma Louise Palmer on May 25, 1939, alleged that she was a resident of the County of Sarasota and State of Florida, and 'that Potter d'Orsay Palmer late of the County of Sarasota and State of Florida, died intestate on the 15th day of May, 1939,' 'leaving petitioner, his wife, as the only heir at law,' and that the decedent 'died seized and possessed of an estate,' real and personal, 'situate and being in Sarasota County, Florida, and elsewhere.'

Plaintiffs in error contend that the said petition was not sufficient to invoke the exercise of jurisdiction on the part of said County Judge's Court because of the failure to allege the domicile of decedent, and that the mere possession of the power to act in regard to a specific subject matter is of no consequence unless that power is properly invoked; that a court cannot act sua sponte, but that its power and jurisdiction to act must be called into activity by the act of some suitor concerned in some mode recognized by law; citing in support of this contention 1 Freeman on Judgments, Section 338 and also Section 338a, wherein it is said:

'Thus it is generally required that a man's estate be settled in the County where he resided at the time of his death. If it appears that letters testamentary or of administration were granted in a county in which the deceased did not reside, the whole proceedings must be regarded as void. Not only must the court have general power under the law which embraces the particular subject matter involved, but that power must have been called into operation by some application, petition, or other pleading presenting a subject matter within that class.'

Section 365 of the same work is cited to like effect; also 15 C.J. 793, 21 C.J.S., Courts, § 78; also Roderigas v. East River Sav. Inst., 63 N.Y. 460, 20 Am.Rep. 555, wherein it was said:

'A Surrogate cannot issue letters of administration until some person interested goes before him, and, on proper application, invokes the exercise of his jurisdiction.'

Counsel for plaintiffs in error also cite 21 C.J.S., Courts, §§ 81, 121; Coffrin v. Sayles, 128 Fla. 622, 175 So. 236; and Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 775. In the case last cited this Court said:

'The rule that jurisdiction of the subject-matter, in the general abstract sense--the power of the court to adjudicate the class of cases to which the particular case belongs--cannot be conferred by the acquiescence or consent of the parties is so universally recognized as to require no citation of authority. The kind of jurisdiction referred to by this rule is the power conferred on the court by the sovereign--which means with us the Constitution or statute, or both--to take cognizance of the subject-matter of a litigation and the parties brought before it, and to hear and determine the issues and render judgment upon the issues joined. Brown on Jurisdiction, § 2 (2d Ed.); 35 C.J. 426; 16 C.J. 723, 734. 'The power to hear and determine a cause is jurisdiction it is 'coram judice,' whenever a case is presented which brings this power into action.' United States v. Arredondo, 6 Pet. [691] 709, 8 L.Ed. 547. 'Jurisdiction of the subject-matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power.' Foltz v. St. Louis, etc., R. Co. [8 Cir.], 60 F. 316, 8 C.C.A. 635. But before this potential jurisdiction of the subject-matter--this power...