Humphries v. Hester

In this case, there is but one assignment of error that appears to be meritorious. That assignment is based upon the fact that R. W. McBride was a party defendant to the suit; that no service binding on such defendant was had; that a decree pro confesso was entered against R. W. McBride without service having been had upon him; and that therefore the court was without jurisdiction to enter a final decree, as long as defendant R. W. McBride stood as a party defendant to the suit and the cause was not at issue as to him. Constructive service upon the defendant R. W. McBride was necessarily sought in this cause, pursuant to Section 3111 Revised General Statutes 1920, as modified by Chapter 10102, Acts of 1925, and Chapter 11364 Acts of 1925 Extra Session, now Sections 4895 and 4896 Compiled General Laws of Florida 1927. The Bill is not sworn to and the affidavit for constructive service fails to state the belief of the affiant as to the age of the defendant R. W. McBride being over or under twenty-one years, or that his age is unknown, as required by the statutes. Shrader vs. Shrader, 36 Fla. 502, 509; *Page 1081 18 So. 672; Belian vs. Wekiwa Ranch, 97 Fla. 180,122 So.2d 559, 562, 563. Statutes authorizing constructive service of process by publication should be strictly and exactly pursued in order to give the court jurisdiction to render a judgment by default against a party who does not appear or plead in the cause. Shrader vs. Shrader, supra; Reynolds vs. Harrison, 90 Fla. 834,106 So.2d 909. It is error to proceed to a final decree in a cause before all parties made defendants have been brought into court and the issues made up, or decrees pro confesso entered against such defendants, or the cause dismissed as to unnecessary parties. Bannon vs. Trammell, 96 Fla. 408, 118 So.2d 167; Sharman vs. Bay Shore Inv. Co., 99 Fla. 193, 126 So.2d 282; Waring vs. O'Doniel, 102 Fla. 354, 135 So.2d 850. Before proceeding to a final decree, the court should strike or dismiss as to all unnecessary parties made defendant, and this should be done whether such parties have been served with process or not. Bannon vs. Trammell, supra; Sharman vs. Bay Shore Inv. Co., supra; Waring vs. O'Doniel, supra. The final decree of the court below is reversed and the cause is remanded for further proceedings.