Thomson v. Thomson

• Decision Date: 06 December 1927
• Citation: Thomson v. Thomson, 94 Fla. 1046, 115 So. 496 (Fla. 1927)
• Parties: THOMSON v. THOMSON.
• Court: Florida Supreme Court

115 So. 496

94 Fla. 1046

THOMSON v. THOMSON.

Florida Supreme Court

December 6, 1927

Suit by A. W. Thomson against Elizabeth Jardine Thomson for divorce.From an order denying a motion for a final decree of divorce complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Affidavit not substantially complying with statute, held not sufficient as basis for order of service by publication (Rev. Gen. St 1920, § 3111.)An affidavit, under the provisions of section 3111 of the Revised General Statutes, which does not comply with, or substantially and in effect comply with, the requirements of such statute, is not sufficient as a basis for an order of publication under such statute.

Affidavit for service by publication, stating defendant's residence was in large city, not stating that affiant had specified residence as particularly as was known to him, held defective (Rev. Gen. St. 1920, § 3111).Where an affidavit, under section 3111 of the Revised General Statutes, for service by publication in a chancery action, states the residence of a defendant to be in a city judicially known to the court to be one of large population, such affidavit is not a sufficient compliance with the requirements of such statute without further stating that affiant has specified as particularly as may be known to affiant the residence of such defendant, or other words substantially to that effect.

Appeal from Circuit Court, Dade County; H. F. Athinson, judge.

COUNSEL

R. B. Moseley, of Miami, for appellant.

OPINION

WRIGHT, Circuit Judge.

The appellant, as complainant in the lower court, filed his bill for divorce in the circuit court of Dade county, Fla., on the 4th day of February, A.D. 1925, against the appellee, as defendant.

Appended to the bill was an affidavit by complainant's solicitor, the material parts of which read as follows:

'That the above-named defendant, Elizabeth Jardine Thomson, is above the age of 21 years; that the said defendant is not a resident of the state of Florida, but is a resident of Edinburgh, Scotland; that there is not any person in the state of Florida upon whom service of process could be made that would bind the above-named defendant.'

Thereafter an order of publication was duly made, published, and mailed (later returned to the clerk 'unopened'); and a decree pro confesso, based on constructive service and failure to appear, entered; an order of reference to a special master made; the testimony taken before the master; and, on June 26, A. D. 1925, the matter was presented to the circuit judge, on motion of complainant for a final decree on final hearing, who found from the record that service had not been obtained upon appellee, and on the same day entered an order denying the motion for final decree on the ground that service had not been obtained upon the defendant, as required by law and the rules of court, and remanding the cause to rules for further proceedings therein.

An appeal was thereafter duly entered, and the assignments of error are:

'(1)The court erred in entering its order herein of the 25th day of June, A.D. 1925, and denying complainant's motion for a final decree.

'(2)The court erred in entering its order herein on the 25th day of June, A.D. 1925, in remanding this cause to rules for further proceedings.'

The sole question presented by the record for our determination is: Were the statements contained in the affidavit appended to complainant's bill with respect to the residence of the appellee sufficiently particular and definite to constitute the basis for constructive service of process on the appellee under the statute so as to give the trial court jurisdiction over her person in the premises?

The material part of section 3111 of the Revised General Statutes of Florida(1920) pertinent to this question provides:

'3111.Constructive Service.--1.Obtaining Order for Publication.--Whenever the complainant, his agent or attorney, shall state in a sworn bill or affidavit, duly filed, the belief of the affiant that the defendant is a resident of a state or country other than this state, specifying as particularly as may be known to affiant such residence, or that his residence is unknown,' etc. (Italics ours.)

In the case of Ortell v. Ortell,107 So. p. 442 et seq., this court held:

'It is the plain purpose of the statute[referring to the statute here under consideration] that the affidavit should specify with sufficient particularity the residence...