Thompkins v. Thompkins

• Decision Date: 14 April 1927
• Citation: 93 Fla. 844,112 So. 766
• Parties: THOMPKINS v. THOMPKINS.
• Court: Florida Supreme Court

112 So. 766

93 Fla. 844

THOMPKINS v. THOMPKINS.

Florida Supreme Court, Division B.

April 14, 1927

Suit by Sherman Thompkins against Olivia Taylor Thompkins for divorce and other relief. From a final decree for plaintiff, and an order denying petition to vacate it, defendant appeals.

Reversed with directions.

Syllabus by the Court

SYLLABUS

Master in chancery may not perform functions designated in order of appointment until order is filed and recorded (Rev. Gen. St 1920, § 3160, as amended by Acts 1921, c. 8574). A master in chancery is without authority to proceed to perform the functions designated in the order of appointment until such order shall have been filed and recorded, as is required by statute.

Testimony taken before master in chancery prior to filing and recording order appointing him should not be considered as basis for final decree (Rev. Gen. St. 1920, § 3160, as amended by Acts 1921, c. 8574). Testimony taken by and before a master in chancery prior to the date of the filing and recording of the order appointing him such master in chancery is without authority of law, and is not entitled to consideration by the court as a basis for a final decree.

Appeal from Circuit Court, Alachua County; A. Z Adkins, judge.

COUNSEL

A. S. Broome, of Gainesville, for appellant.

Zach H. Douglas, of Gainesville, for appellee.

OPINION

BUFORD J.

In this case appellee filed bill for divorce against the appellant, in which he sought not only to dissolve the bonds of matrimony, but to have declared a resulting trust in himself, the title to certain property, the legal title to which was in the respondent. A decree pro confesso was entered, and afterwards a master was appointed. Testimony was taken and final decree was entered, as follows:

'This cause coming on to be heard before me upon the bill of complaint and the testimony and the findings of the special master heretofore appointed herein, and, counsel having been heard, upon motion of solicitor for complainant for a final decree, the court finds that the complainant duly filed his bill in this cause, and that the defendant was duly and regularly server with process, and failed to file any pleadings herein, a decree pro confesso having been regularly entered against the defendant herein, the court finds from inspection of the bill of complaint as aforesaid, the testimony and the findings of the special master, that the court has jurisdiction of this cause, and the equities of the cause are with the said complainant, Sherman Thompkins, and that he is entitled to the relief prayed for in and by the said bill of complaint.

'It is therefore ordered, adjudged, and decreed that the bonds of matrimony heretofore existing between the complainant, Sherman Thompkins, and the defendant, Olivia Taylor Thompkins, be, and the same are hereby dissolved and declared henceforth null and void, and a decree of divorce a vinculo matrimonii is hereby decreed and entered between the said parties.

'It is further ordered, adjudged and decreed that the complainant, Sherman Thompkins, do have and recover of and from the defendant, Olivia Taylor Thompkins, the north half of lot 6, block 137, Foster's addition to the town of High Springs, Fla., the same being a lot 50 feet front on West Thirteenth street by 150 fronting on First avenue, according to the plat of said Foster's addition to the town of High Springs, and that the said defendant do hereby execute a good and sufficient deed to the above-described property within 20 days from the date hereof. In the event the defendant, Olivia Taylor Thompkins, fails and refuses to execute such deed, then this decree shall become and operate as such deed conveying title to the said north half of lot 6, block 137, Foster's addition to the town of High Springs, Fla.

'Done and ordered in Chambers at Gainesville, Fla., this 1st day of June, A. D. 1926.'

Afterwards, and after notice, a petition was filed praying an order to vacate the final decree. The petition was denied. From the final decree and the order denying the petition to vacate the final decree appeal was taken.

There were two assignments of error. The first was addressed to the action of the court in entering the final decree dated June 1, 1926, and the second assignment of error was addressed to the action of the court in denying respondent's petition to vacate the final decree. Disposition of the first assignment of error disposes of the second assignment of error.

The record shows that the order appointing the special master was made on the 20th day of October, 1925, by Hon. A. Z. Adkins, Judge; that such order was filed in the office of the clerk of the circuit court on the 1st day of June, 1926, and recorded in chancery order book on the 4th day of June, 1926; that all the testimony was taken before the master before the order was filed and recorded.

Section 3137, Revised General Statutes of Florida, provides that:

'Judges of the circuit court may appoint in writing from among the members of the bar in such circuit as many general masters in chancery as...