Klinger v. Milton Holding Co.

Chapman, J. — This is an appeal from an order dated September 16, 1936, entered hy the Circuit Court of Dade County, Florida, dismissing with prejudice, a bill in the nature of a bill of review to impeach, annul and set aside a final decree entered hy the Circuit Court of Dade County, Florida, in a chancery suit therein previously pending No. 32344, with deed or conveyances based thereon, and for'an accounting. All parties claiming under each of said instruments were made parties to the bill of review. This Court approved a similar suit in the case of Yager v. North & South A. R. Phos. Co., 82 Fla. 38, text 44-5, 89 So. 340, when it was said: “ * * * This suit was brought to annul the proceedings and decrees in another suit decided in the same court. The bill was therefore not an original bill. The subject of the litigation had its origin and source in the controversy involving the partition of the lands between the two corporations. *52 The facts alleged in the. bill in-the instant case appear not to have arisen subsequently to the former litigation, but were thén available to a diligent person interested in the controversy. It is a bill to revers'e a decree rendered in the partition suit. It is therefore a bill of review, but it does not rest upon error apparent, nor upon new matter arising after the rendition of the decree; but attacks the decree upon the ground of fraud alleged to have been perpetrated by counsel in the cause and manipulations of officers of one of the corporations interested in the lands; but no leave was granted by the court nor asked for by complainant to file the bill so far as the record discloses. The allowance of a bill of review is not a matter of right in the parties, but rests in the sound discretion of the Court to be exercised cautiously and sparingly, and under circumstances that demonstrate it to be- indispensable to the merits and justice of the cause. See 10. R. C. L. 575.” See Taylor v. Day, 102 Fla. 1006, 136 So. 701; State v. White and F. C. & P. Ry., 40 Fla. 297, text 310, 24 So. 160; Mattair v. Card, 19 Fla. 455. ■ Service by publication was had on the defendant P. W. Klinger, appellant here, and is the basis for the final decree dated December 7, 1931, sought to be impeached, set aside, and decreed null and void in this bill of review. The order of publication as made by the Clerk of the Circuit Court of Dade County, Florida, was predicated on the following affidavit : “Before me, a Notary Public of the State of Florida at Large, personally appeared L. R. King, who after being first duly sworn, upon his oath deposes and says: ; “That he is Agent and Attorney for the above named Complainant and as such is duly authorized to make this Affidavit, and makes the same for and on behalf of said Complainant; that it is the belief of the Affiant and the com *53 plainant that the Defendants, Arthur E. Williams, and if married,________Williams, his wife, Julian E. Gray, and if married,________Gray, his wife, P. W. Klinger, and if married,________Klinger, his wife, and Cora H. Welch, unmarried, or if married, her husband, are non-residents of the State of Florida, and are residents of a State or Country other than the State of Florida, and that the place of residence of said defendants is unknown. Affiant further says that he believes that said Defendants’ are over the age ■ of twenty-one years, and that there is no person in the State of Florida the service of a Subpoena upon whom would bind said defendants. “Affiant further says that the defendant, Smitz & Emmons, Inc., is a Florida corporation, and that there has been filed in this cause a Certificate of the Secretary of State of Florida, certifying that said corporation is organized and existing under the laws of the State of Florida, .and that the said corporation has not complied with provisions of Section 57, Chapter 10095, Laws of Florida, 1925, nor with Sections 4253 or 4359 of the Compiled General Laws of the State of Florida, 1927, relative to designating an office or place of business or domicile for the service of process and naming an agent to accept service; that after diligent search, the Sheriff of Dade County, Florida, has failed to find any officer or agent-of the said corporation in Dade County, Florida, upon whom process could be served, and has so returned the Writ herein; that there is no person in the State of Florida the service of a Subpoena upon whom would bind the said Defendant corporation.” The above affidavit states that affiant believes the P. W. Klinger, a defendant therein, at the time of making the affidavit was a non resident of the State of Florida and at the time was a resident of a State or Country other- than the State of Florida and that his place of residence - was uri *54 known. ' The transcript of the record shows that L. R. King, at the hearing before the Master, in part testified, as follows : “Q. In that affidavit, Mr. King, you state that the pi lintiff in this present suit, P. W. Klinger, and his wife described therein as ................ Klinger, are non-residents of the State of Florida according to your belief, and their residence is unknown. I will ask you to state what investigation or inquiry you made, if any, prior to the making of that affidavit? “A. I first had an abstract or search of the record made by J. W. Blow embracing some ten or twelve lots which are involved in the suit to foreclose certain tax certificates. As I recall at this time, from that abstract I mide an examination of the various conveyances as they appeared In the abstract, in deed and mortgage books in the Clerk’s office, Dade County, Florida, and in addition to that, as I recall, I also examined to determine whether or not, or rather, to whom those conveyances that appeared in the abstract or-search of title were delivered from the Clerk’s office. I also examined the then current City of Miami directory to determine the address or residence of Mr. Klinger and I also examined the current telephone directory in the City of Miami to determine the residence or address of Mr. Klinger. As I recall, the bill was filed, that is the bill establishing the case in which this affiadvit was filed, in the early part of the year 1931. * * * “Q. Did you know that there was in the office of the Tax Collector a record or writing which purported to show that place of residence of P. W. Klinger as 235 Grafton Avenue, Dayton, Ohio? “A. I did not. “Q. Did the Clerk of the Circuit Court of the Tax Collector advise you that-there were duplicate tax receipts is *55 sued to P. W. Klinger, which receipts showed the place of residence to be 235 Grafton Avenue, Dayton, Ohio? "A. No. * * * “Q. As I understand you, you didn’t rely entirely upon the information contained in the abstract but investigated instruments recorded in what is known as the public records of the Circuit Court Clerk’s office? “A. As I recall I was able to find a certain number of defendants in the city directory and in the telephone book who were local. Those I could not find through that source I made a list of, just how many I do not recall, and made an examination of those records in the Clerk’s office with reference to those defendants whom. I was unable to determine were residents from examination of the directory and telephone book. “Q. Do you have at this time any independent recollection of having examined page 232 of Deed Book 681 of the Circuit Court Clerk’s office? “A. At the time the affidavit was filed I do not, Mr-Lindsey. “Q. To refresh your recollection, I exhibit to you Plaintiff’s Evidentiary Exhibit No. 2, a certified copy of the deed recorded at page 232 of Deed Book 681 of the Public Records of Dade County, Florida, and will ask you if that causes you to recall whether or not you examined that deed. “A. I. don’t recall of having seen this deed among the records at the time the affidavit was made. “Q. If you failed to examine that-.deed it was an oversight in your intention of examining all the records ? “A. If it was of record at that time, yes. “Q. Do you recall just where you obtained the information from which you based your allegation in the bill of complaint in Chancery Cause No. 32344-C that P . W. Klinger and if married,__________Klinger, his wife, had *56 or claimed some interest in Lot 3, Block 13, Beach View Addition ? “A. Apparently that was taken, and I am quite sure it was taken, from the search of title or abstract which I. had prepared on that particular lot or lots with the other lots involved in the suit. “Q. Then, to the best of your recollection you did not as to that particular lot 3 of Block 13, Beach View Addition, being the property involved in this case, go further than the information contained in the abstract and city and telephone directories. “A. Rather, on the contrary, as I recall, I made an examination of the public records to determine the residence of Mr. Klinger along with other defendants. Whether or not I examined that particular deed, or overlooked to examine it in making a schedule of defendants and their residences, I do not know. Whether I actually examined that deed or not I do not know. I couldn’t say. “Q. But you are quite sure'that it appeared in the abstract and that was'what you based this allegation in the bill of complaint upon, the information either contained in the abstract or appearing upon the public records? “A. I am inclined to think that it appeared in the abstract, though it has been some three years since I have seen the abstract to examine it. “Q. I direct your attention, Mr. King, to the certificate of the Clerk appended to Plaintiff’s Evidentiary Exhibit No. 2 that the deed of which that exhibit is a certified copy was filed in the Clerk’s office on the 27th day of July, 1925. Then it would be true, would it not, that this deed was of record at the time of filing your bill in chancery No. 32344-C? “A. Apparently that is true. * * * “Q. Then it would be true, Mr. King, that i-f you had *57 followed out your intended efforts in the locating of the places of residence of the defendants to inspect all original recorded instruments shown by the abstract, you would have discovered the same ? ■ “A. If that deed was recorded at that time, and it appears to have been, it discloses that the grantee in that deed was from Dayton, Ohio, without any particular designated address. “Q. Then, as I understand your testimony, Mr. King, if this deed was of record, you either didn’t read it or you overlooked this address or this place of residence appearing bn the face of the deed. “A. That would appear to be true. I previously stated tháf I had not seen the deed, either or record or otherwise,' so that if) there is any conclusion to be drawn, it would be that I overlooked or did not discover the deed at all.” In the case of Balian v. The Wekiwa Ranch, 97 Fla. 180, text 193-4, 122 So. 559, it was said: “Affiant’s mere arbitrary statement, however, as to the defendant’s residence or whereabouts, or as to complainant’s belief concerning the same, does not conclude the matter as against timely and appropriate attack. The statement must be truthful and free from mala fides. The basis for the statement must not be merely nebulous or fanciful, but one which is reasonably tangible or perceptible in fact. Resort to constructive service is predicated upon necessity, and if personal service could be effected by the exercise of reasonable diligence,- constructive service is not justified. The sworn statement required of the complainant by the statute presupposes a previous reasonable search to ascertain the whereabouts or residence of the defendant, and diligence appropriate to the circumstances of the particular case, without which the requirements of due process would not be *58 satisfied, and the door would be open to the perpetration of fraud.” It was also said in this case, Text page 192: “The qualifying phrase, ‘specifying as particularly as may be known to affiant such residence’ was first added to the statute in 1892. That phrase, however, obviously qualifies only the condition which precedes it, which is that under which affiant states his belief that the defendant is a resident of a state or county other than this State. It is apparent in such a case that complainant has at least some knowledge as to the place of defendant’s residence, and he is required to state it as particularly as it may be known to him. See Ortel v. Ortel, supra (91 Fla. 50, 170 So. R. 442). In that situation, defendant’s residence is not altogether ‘unknown’ to complainant, within the purport of the statute * * * ” See McDaniel v. McElvey, 91 Fla. 770, 108 So. 820, 51 A. L. R. 731. The affidavit for an order of service by publication is dated April 2, 1931. It was filed in the office of the Clerk of the Circuit Court of Dade County, Florida, on April 3, 1931. Exhibits offered in evidence from the Tax Collector’s office of Dade County, Florida, dated November 30, 1928; on January 30, 1929; on December 18, 1930; on November 30, 1931, and on November 30, 1932, show that P. W. Klinger lived at 235 Grafton Avenue, Dayton, Ohio. The deed to Klinger to Lot 3 (Three), Block 13 (Thirteen), Beach View Addition, as recorded in the office of the Clerk of the Circuit Court of Dade County in Deed Book 681, at page 232, and filed in the office for recordation on July 27, 1925, had and carried the address of P. W. Klinger at Dayton, Ohio. The address of P. W. Klinger at 235 Grafton Avenue, Dayton, Ohio, is further shown to have been in the office of Tax Collector of the City of Miami Beach, Florida, during the years 1925, 1926, 1927, 1928, 1929, 1930 and *59 1931. On January 27, 1933, after foreclosure and a Master’s deed had been obtained, the correct address of appellant was obtained and he received a letter, viz.: “Mr. P. W. Klinger, 235 Grafton Avenue, Dayton, Ohio. “Dear Sir: “In Re: Lot 3, Block 13, Beach View Addition, Plat Book 16, Page 10. “The records of the tax collector’s office show that you paid the State and County taxes for the years 1931 and 1932, and the City of Miami Beach taxes for the year 1931 on the above described property. “We wish to call to your attention the fact that our client is now the owner and holder of the fee simple title to the above described property, having foreclosed a tax certificate in the Circuit Court in and for Dade County, Florida, being Chancery case No. 32344, at an expense of approximately $1,000. “It is our desire to reimburse you for the amount you paid for taxes, provided you are willing to execute to us a quit-claim-deed. Otherwise we will be glad to entertain any proposition you might care to make in regard to the repurchase of the said property.” It is clearly shown by the records in this case that the diligence required by law to ascertain, learn, and with accuracy set forth the place of residence of the defendant P. W. Klinger has not been made to appear. The correct address of P. W. Klinger was given by the record in the deed as Dayton, Ohio. The records in the Tax Collector’s office of Dade County, as well as the Tax Collector’s office of the City of Miami Beach, gave his correct city address in Day-Ion, Ohio, and had been in each of these offices for several years prior to April 3,T931. The defendant, P. W. Klinger, testified that he had no knowledge of the institution of the *60 Chancery suit to foreclose the tax certificates issued against his property and that no notice of its pendency was ever received, and this conclusion is fully sustained by the record. The Master made findings of fact and recommendations to the Chancellor, in part, as follows: “It is your Master’s opinion that the Master’s sale held pursuant to. such defective notice was of no legal effect insofar as the 'property involved herein is concerned; that the confirmation of the Master’s report was error because the requirements of the final decree had not been complied with; and that the Master’s Deed executed and delivered pursuant thereto to the plaintiff Milton Holding Company in said cause No. 32344 was ineffectual insofar as the property involved in this instant cause is concerned. “R e commendations “The Master, therefore, finds that the equities are with the plaintiff, and recommends that in order that substantial justice be done the plaintiff herein that the Master’s deed issued pursuant to said final decree in cause No. 32344 to the defendant herein, Milton Holding Company, be, insofar as the same purports to convey the property involved herein, set aside, annulled and held for naught, and that the deed from said Milton Holding Company to the defendant Lula J. Lummus, a widow, be cancelled, annulled and set aside and held for naught insofar as same purports to convey said property involved herein. * * * ” The question presented here is whether or not there has been such a substantial compliance with our constructive service statutes as to give the lower court jurisdiction of the person of P. W. Klinger. We hold that the affidavit upon which the order of publication was made is defective, fails to comply with the statute and is insufficient in law to confer jurisdiction. It has been held by previous decisions that *61 where the court has no jurisdiction over the person of a defendant by reason of defective constructive service by publication, any action of the court against the defendant based upon such service is without authority of law. In the case of Stern, et ux., v. Raymond, et al., 95 Fla. 410, text 411-12, 116 So. 6, this Court had the same question before it and said: “ * * * we must hold that if the allegations in regard to the publication of the notice by which constructive service was attempted to have been had upon the defendants in this suit to foreclose the paving lien as evidenced by the paving certificate, are true, then the decree of foreclosure of such lien was void because the court had not acquired jurisdiction of the parties. State, ex rel. Yaeger, v. Rose, 93 Fla. 1018, 114 So. 373. A suit might be maintained at any time to set aside such void decree. Shrader v. Shrader, 36 Fla. 502, 18 So. 672; Myakka Co. v. Edwards, 68 Fla. 382, 67 So. 217; Cobb v. Hawsey, 56 Fla. 159, 47 So. 484; Wilson v. Drumwright, 87 Fla. 202, 99 So. 553 * * * ” Section 4, Declaration of Rights of the Constitution of Florida, makes it the duty of all courts in this state to see that right and justice shall be administered, without sale, denial or delay. It appears from the record in this case that appellant has been deprived of his property without his day in court. It cannot be said that right and justice has prevailed in the case at bar. The final decree dated December 7, 1931, the Master’s deed predicated thereon and subsequent mesne conveyances are void ab initio. The decree appealed from is hereby reversed with directions to the lower court to make and enter such, further orders or decrees as' shall be conformable to equity not inconsistent with this opinion. It is so ordered. Whitfield, P. J., and Brown, J., concur. *62 Ellis, C. J., and Terrell and Buford, J. J., concur in the opinion and judgment.