United Brotherhood of Carpenters and Joiners of America v. Graves Inv. Co.

• Decision Date: 28 September 1943
• Court: Florida Supreme Court
• Parties: UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA v. GRAVES INV. CO. et al.

15 So.2d 196

153 Fla. 529

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA v. GRAVES INV. CO. et al.

Florida Supreme Court

September 28, 1943

Rehearing Denied Oct. 25, 1943.

Appeal from Circuit Court, Alachua County; John A. H Murphree, judge.

W. E Baker and T. E. Duncan, both of Gainesville, for appellants.

Jordan Lazonby & Dell, of Gainesville, and Elliott Adams, of Jacksonville, for appellees.

WALKER, Circuit Judge.

The Circuit Court of Alachua County by its final decree dated February 8, 1940 purported to cancel and annul the following tax sale certificates, viz., No. 1036 issued September 9, 1936; No 561 issued August 30, 1937; No. 840 issued August 29, 1938; and No. 473 issued September 11, 1939. The certificates related to and embraced certain lands described therein, situate in Alachua County and owned by Mrs. Louise La Fontisse Fielding, a married woman.

About five months thereafter, on July 3, 1940, appellees, the certificate holders, filed a bill of review to review the said final decree by which the certificates were cancelled, as well as the record upon which the same was predicated, and on February 25, 1941, the chancellor (after first denying the motion) granted a rehearing on a motion to dismiss, sustained the same, and dismissed the bill of review. From the order of dismissal, an appeal was taken to this court where it was held that the bill of review stated 'a case of error apparent on the record and should not have been dismissed.' See Adams et al. v. Fielding, 148 Fla. 552, 4 So.2d 678, 683.

Thereafter the chancellor, after having given the owner of the lands and opportunity to be heard, by appropriate order vacated the final decree by which the certificates were purportedly cancelled and dismissed the original bill of complaint. Whereupon an appeal was taken from this order and the same was affirmed in the case of Fielding v. Adams et al., Fla., 11 So.2d 800.

In the meantime, on July 25, 1941, the then trustees for appellants purchased the premises described in the certificates at a time when the decree of cancellation stood as a matter of record unreversed and without appeal therefrom, and at a time when a bill of review had been filed, July 3, 1940, and a final decree was of record dismissing the same, and when, although an appeal had been taken in due course from such order of dismissal, no lis pendens was filed nor supersedeas taken.

Although the validity of the certificates, generally, is now conceded, but because of the purchase of the premises under the circumstances mentioned, appellants contend that the certificates are unenforceable against the lands in their ownership.

On the 3rd day of April, 1943, appellee, Graves Investment Company, filed tax certificate No. 1036 in the office of the Clerk of the Circuit Court of Alachua County, and made application for a tax deed to be issued thereon. Publication of notice was commenced and other steps were taken looking toward this end which precipitated the filing of a bill of complaint by appellants designed to enjoin the sale and to have the certificates cancelled and set aside on the ground, substantially, that they were unenforceable, as against the lands in their ownership, because of the circumstances hereinbefore related under which the premises were purchased by them.

Thereafter, upon motion of appellees, the chancellor dismissed the bill of complaint with the result of an appeal to this court in which this action of the chancellor was assigned as error, as well as his refusal to grant a temporary injunction.

If the court failed to acquire jurisdiction of the subject matter and of the parties, appellants had no right to rely upon the validity of the decree which purported to cancel the certificates, because 'for a decree to be valid it must be shown by the record that the court had jurisdiction of the subject matter and of the parties. Walker v. Carver, 93 Fla. 337, 112 So. 45.

'Every valid judgment must be predicated on three essential factors, viz., power to enter, jurisdiction of the parties, and jurisdiction of the subject-matter. Coslick v. Finney, 104 Fla. 394, 140 So. 216; McGehee v. Wilkins, 31 Fla. 83, 12 So. 228; Wilds v. State, 79 Fla. 575, 84 So. 664; Malone v. Meres, 91 Fla. 709, 109 So. 677.'

The decree of cancellation was one pro confesso and was based upon attempted constructive service. See Kooman's Florida, Chancery Pleading and Practice, p. 136, wherein it is stated:

'Statutes authorizing constructive service of process must be strictly and exactly pursued in order to give the court jurisdiction to render a judgment by default. If there is a failure to pursue the essential requirements of the statute, a decree rendered upon constructive service is void as to parties who have not appeared or pleaded in the cause.'

See, also, Smetal Corporation v. West Lake Inv. Co., 126 Fla. 595, 172 So. 58, text 72, wherein it is stated.

'It is well settled in this jurisdiction that statutes authorizing constructive service of process by publication must be strictly construed and fully complied with in order to give a court jurisdiction of the person of the defendant. Shrader v. Shrader, 36 Fla. 502, 18 So. 672; Wylly v. Sanford Loan & Trust Co., 44 Fla. 818, 33 So. 453; Ortell v. Ortell, 91 Fla. 50, 107 So. 442; Tibbetts v. Olson, 91 Fla. 824, 108 So. 679; Reynolds v. Harrison, 90 Fla. 834, 106 So. 909; State v. Gray, 92 Fla. 1123, 111 So. 242.'

Also see Catlett v. Chestnut, 107 Fla. 498, 146 So. 241, 91 A.L.R. 212.

It appears from the face of the record in the cancellation suit that the court never acquired jurisdiction over the corporate appellee certificate owner and was, therefore, without authority to enter the decree of cancellation. We held in our opinion in the case of Adams v. Fielding, supra, that the constructive service upon which the decree was predicated was defective for lack of due diligence and for a failure otherwise to comply with Section 4256, Compiled General Laws of Florida 1927, F.S.A. § 48.06, incident to the issuance of the order of publication. Commenting on this point, we, among other things stated:

'Order for service by publication was not filed and recorded until the 15th day of January, 1940. So it appears that the Sheriff's return had not been filed until more than two weeks after the order for service by publication was made.

'Nowhere in either the summons or return is it shown whether the corporation, Graves Investment Company, is a Florida corporation or a foreign corporation which had done business in this State.'

In the Smetal Corporation case, supra, 172 So. on page 71, we clearly held that:

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