Ringling v. Ringling

Per Curiam. This case is before us on motion to dis'miss an appeal on the ground that the same is frivolous. The appeal is from an order overruling and denying motion to quash constructive service. The affidavit for publication of constructive service was in the following language, to-wit: *425 “In the Circuit Court of the Twenty-Seventh Judicial Circuit Court of Florida, in and for Sarasota County. In Chancery. “John Ringling, Plaintiff, v. Emily Ringling, Defendant: “Divorce “Affidavit for Constructive Service “State of Florida, “County of Sarasota. • “Before me, the undersigned authority, personally appeared John Ringling, who first being sworn, deposes and states that Emily Ringling, "defendant in the above entitled cause is a resident of the State of Florida, and that the said Emily Ringling has' been absent from the State of Florida for more than sixty days next preceding the application for the Order of Publication and that there is no person in the State of Florida the service of a subpoena upon whom would bind the said defendant. That the address of s'aid Emily Ringling, as particularly as is known, or can be ascertained by Affiant, is 270 Park Avenue, New York City. That the affiant believes that the said defendant, Emily Ringling, is over the age of twenty-one years. “John Ringling. “Sworn and subscribed to before me, this 3rd day of March, A. D. 1934. “Mable Harkleroade, Notary Public {Seal)." The affidavit is sufficient to comply with the provisions of Section 3111 R. G. S., 4895 C. G. L. While the statute only requires the affidavit to allege the “belief” of the affiant that the defendant, being a resident of this State has been absent from the State for more than sixty days next prior to the date of the filing of such affidavit, and that there is no person in the State of Florida service of subpoena upon *426 whom would bind the defendant, the affidavit makes the allegation as a definite existing fact. This' is certainly tantamount to alleging the belief of affiant as to such facts. The contention is that the service is invalid because, as a matter of fact, the defendant had been within the State of Florida within sixty days before the date of filing of the affidavit.' This fact was established by proof in support of the motion to quash. The uncontradicted evidence, however, is that the plaintiff did not know this was a fact and that hé verily believed the allegations' of the affidavit to be true and that he made the same in good faith. We think this is all the statute requires. . There is no contention that the defendant or anyone' service'of subpoena upon whom would bind the defendant was within the State of Florida at the time the affidavit was filed. " If the defendant was beyond the territorial' limits of Florida and there was no one in the State of Florida service of subpoena upon whom would bind the defendant and the other allegations contained in the affidavit were made in good faith and verily believed by affiant to be true at the time the affidavit was filed, there was no error in the order appealed from. ■ Where it appears'from an inspection of the record on a motion to dismiss an appeal- on the ground that the same is frivolous that there is no error in the order from which appeal is taken, but it does' not appear that the appeal is entirely frivolous the order will be then affirmed and the cause' disposed of here. It is so ordered. Affirmed. -■ Davis, C. J., and Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.