Wilds v. State

• Decision Date: 24 April 1920
• Parties: WILDS v. STATE.
• Court: Florida Supreme Court

84 So. 664

79 Fla. 575

WILDS v. STATE.

Florida Supreme Court

April 24, 1920

Error to Criminal Court of Record, Hillsborough County; W. S Graham, Judge.

T. B Wilds was convicted of perjury, and from the sentence he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where the court has not acquired jurisdiction of the subject-matter and of the parties affected by the judgment or decree entered, such judgment or decree is void and may be so held in a collateral proceeding.

If the court has acquired jurisdiction of the subject-matter and of the parties, the judgment or decree entered is binding, even though erroneous, because of irregularity of procedure, and such judgment or decree will not be set aside, reversed, or modified, except by appropriate direct appellate procedure.

In a suit for divorce service was made by publication. The return day in the published notice was May 26, 1919. There was no appearance by the defendant, and on May 31 following a decree pro confesso was entered by the court against the defendant for failure to appear, answer, or otherwise plead. On the same day an order was made, appointing a special master to take the testimony and report the same to the court. The special master on the day of his appointment proceeded to take the testimony, which was thereafter reported to the court, and on June 3 following a final decree was entered, in which the prayer contained in the bill was granted. Held that there was no authority for the entry of the decree pro confesso until 'the rule day succeeding the date fixed in the order of publication,' which was June 2, and its entry on May 31 was therefore premature.

The effect of the premature entry of a decree pro confesso is not to render the subsequent proceedings void, but at the most only voidable, and especially so when it appears from the record that the court had jurisdiction of the subject-matter and of the parties, as in this case, and that, although the decree pro confesso was entered before the rule day succeeding the day fixed in the order of publication, it was entered after such return day, and the final decree was rendered after the rule day upon which the complainant was entitled to a decree pro confesso against the defendant.

In an indictment for perjury, it is an essential allegation that the party charged was duly sworn, and that the oath was administered to him by some one authorized by law to administer such oath, and it must appear that the court in which the perjury is alleged to have been committed had jurisdiction of the cause in which the testimony upon which the charge of perjury is predicated was given.

Although a tribunal must have jurisdiction of the cause or proceeding before perjury can be committed therein, yet where there is a defect which renders the proceeding voidable only, and such proceeding is amendable, or when the defects are waived by the parties and the cause is heard on the merits, then perjury may be committed.

COUNSEL

Lunsford & Whitaker, of Tampa, for plaintiff in error.

Van C. Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for the State.

OPINION

WEST J.

In this case plaintiff in error, referred to herein as defendant, was tried and convicted in the criminal court of record for Hillsborough county of the crime of perjury. To the sentence imposed he took writ of error from this court.

The alleged false swearing by defendant which is the basis of the perjury charge occurred, so it is alleged, in the giving of his evidence before a special master in a suit for divorce brought by defendant against his wife.

There are a number of assignments of error, but the principal contention is that the proceeding in which the alleged false swearing by defendant occurred was void, and that therefore his conviction cannot be upheld. In other words, defendant says, in substance, it is settled law that where a court renders a judgment without first having acquired jurisdiction of the subject-matter of the suit and the person of the defendant, such judgment is void and subject to collateral attack; that in the trial of defendant it appeared from the proof offered and received in evidence against him that the proceeding in which the alleged perjury was committed was void because no jurisdiction of the person of the defendant had been acquired by the court, and that therefore such proceeding was a nullity. It may be conceded that if each premise of this syllogism is true, the conclusion is inevitable. It may also be conceded that the first premise is true because it is elementary that where a court has not acquired jurisdiction of the subjectmatter and of the parties affected by the judgment or decree entered, such judgment or decree is void, and may be so held in a collateral proceeding. 23 Cyc. 1074; 15 R. C. L. 844; 12 Enc. of Pl. & Pr. 179; Torrey v. Bruner et al., 60 Fla. 365, 53 So. 337; McGehee v. Wilkins, 31 Fla. 83, 12 So. 228. But it is also well settled that if the court has acquired jurisdiction of the subject-matter and of the parties the judgment or decree entered is binding, even though erroneous because of irregularity of procedure, and that such judgment or decree will not be set aside, reversed, or modified except by appropriate direct appellate procedure. Torrey v. Bruner, supra; Lucy v. Deas et al., 59 Fla. 552, 52 So. 515.

The grounds of the alleged invalidity of the proceeding in which the alleged false swearing occurred are that the decree pro confesso entered in the cause was prematurely entered; that all subsequent proceedings, including the order appointing the special master, who took the testimony and administered the oath to defendant as a witness in said cause, were unauthorized, and that therefore the defendant took no oath, which was administered to him by an officer authorized by law to administer such an oath, before he gave testimony in the cause.

In an indictment for perjury it is an essential allegation that the party charged was duly sworn, and that the oath was administered to him by some one authorized by law to administer such an oath. Adkinson v. State, 59 Fla. 1, 51 So. 818; Bedsole v. State, 59 Fla. 3, 52 So. 1. And it must appear that the court in which the perjury is alleged to have been committed had jurisdiction of the cause in which the testimony upon which the charge of perjury is predicated was given. Markey v. State, 47 Fla. 38, 37 So. 53.

In the suit for divorce brought by defendant against his wife service by publication was made upon her. The return day in the published notice was May 26, 1919. There was no appearance by the defendant in that suit, and on May 31 following a decree pro confesso was entered by the court against her for failure to appear, answer, or otherwise plead. On the same day (May 31,...