Balan v. the Wekiwa Ranch

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 182 The Wekiwa Ranch, a Florida corporation, exhibited its bill in chancery against the appellants whose places of residence were alleged to be unknown to the complainant. *Page 183 The bill is sworn to on information and belief by the agent and attorney for the complainant. A few months after the bill was filed the president of the complainant corporation caused to be filed in the clerk's office his affidavit that the places of residence of the defendants, naming them, were unknown and that affiant had made diligent inquiry on complainant's behalf to ascertain the places of residence of the defendants; that there was no person in the State of Florida upon whom the service of a subpoena would bind the defendants or either of them, and that it was the affiant's belief that the defendants or either of them, and that it was the affiant's belief that the defendants were over the age of twenty-one years. The bill also alleges the same state of facts as to the non-existence of any person in Florida the service of a subpoena upon whom would bind the defendants and that they were over the age of twenty-one years. On the 5th day of May, 1926, an order of publication was made against the defendants requiring them to appear on the first Monday in June, 1926, the same being the 7th day of the month, and make answer to the bill of complaint. The order was required to be published once a week for four consecutive weeks in the Sanford Herald, a newspaper published at Sanford. Proof of publication was filed showing that the order was published, as directed, in the Sanford Herald in the issues of May 6th, 13th, 20th, 27th and June 3, 1926. The clerk's certificate that he posted a copy of the order of publication at the door of the court house for more than five weeks prior to the 7th day of June, 1926, and that he mailed copies of the order to the "address of the defendants, as given in the affidavit of complainant, within 20 days from the making of said order," was also filed. Two praecipes for a decree pro confesso against the defendants *Page 184 were filed: one on July 5th and the other on June 7th. The first requested a pro confesso order for failure to appear and the second for "failure to appear, plead, answer or demur to said cause." On June 7th the clerk entered the pro confesso order. The defendants, on December 8, 1926, moved the court to set aside the order pro confesso and permit them to answer. The grounds of the motion were that the affidavit of the president of the complainant corporation that the residence of the defendants was unknown was not true, that he did know the residence of defendants; that the allegation of the bill that their residence was unknown was untrue; that they had a complete and meritorious defense to the bill as shown by their answers which they tendered and that they were not lacking in diligence in submitting the motion. It appears from the record that in October, 1927, the joint and several answer of the defendants was filed and that it had been sworn to in November, 1926. In October, 1927, the chancellor denied the motion to set aside the decree pro confesso. And in March, 1928, the defendants appealed. The bill of complaint is vague and uncertain in its allegations and contains no ground for equitable relief. It seems to rest upon a contract which the complainant had entered into with a Wisconsin corporation, known as The Masses Company, under which the complainant agreed to convey to it certain land in Seminole county; that the defendants are the stockholders, agents and officers of the company and that by a "subsequent arrangement" the lands in Seminole County were conveyed by the complainant to the defendants; that complainant was to assume a mortgage debt of $48,000.00 on certain hotel property in Racine, Wisconsin; that all of that sum had been or would be used in the construction of the hotel and that *Page 185 complainant would get the entire benefit of it; that all of that sum was not used in the construction of the building but complainant had to expend three or four thousand dollars to complete it. It is alleged that in "consideration of the premises there is due and remaining on the purchase price of said property the sum of approximate Eleven Thousand ($11,000.00) Dollars," for which the complainant should have a vendor's lien and which he prayed should be declared and enforced. The alleged contract is not attached to the bill, although it is alleged that it was attached thereto and marked "Complainant's Exhibit A and made a part thereof." The directions for making up the transcript required the clerk to copy the bill of complaint. Whatever equities if any at all exist in the case must exist by virtue of the alleged contract, but as the contract is not before the Court there is nothing but the fragment of the bill of complaint which seems to rest complainant's prayer upon a breach of contract by somebody resulting in damages to complainant for which he has an adequate remedy at law. The order requiring the defendants to appear, the publication of same in the newspaper and the clerk's certificate are all invalid and the court acquired no jurisdiction of the defendants to affect their interest in the property described. The bill was filed in 1926. The complainant therefore in order to obtain substituted service or constructive service of the court's process against the defendants had to comply with the provisions of Sec. 3111, Rev. Gen. Stats., 1920. Compliance with the terms of the section entitled the complainant to an order of publication, See Chapter 10102, General Session, 1925, as amended by Chapter 11364, Extraordinary Session, 1925. *Page 186 To entitle a complainant to an order of publication he or his agent or attorney should state in a sworn bill or affidavit that the defendant is a resident of a state or country other than the State of Florida. When so stated the defendant's place of residence must be specified as particularly as may be known to affiant or that his residence is unknown. If, upon the other hand, the defendant is shown to be a resident of the State the complainant would be nevertheless entitled to his order if it appears from the sworn bill or affidavit that the defendant has been absent more than sixty days next preceding the application for the order of publication or that he conceals himself so that process cannot be served upon him. In either case it must appear that there is no person in the State the services of a subpoena upon whom would bind the defendant and it must also appear from the bill or affidavit that the affiant believes the defendant to be over or under twenty-one years of age or that his age is unknown. The purpose of the statute was to facilitate the adjudication of the rights of absent defendants in and to real property located within the jurisdiction of the State. Absence from the State for sixty days, if the defendant is a resident, or his concealment to avoid process is within the purpose of the statute equivalent to non-residence. Every fact should be shown which is necessary under the statute to give the right to an order for service by publication. Rue v. Quinn, 137 Cal. 651, 66 Pac. R. 216, 70 Pac. R. 732; Hannas v. Hannas, 110 Ill. 53; Carleton v. Carleton, 85 N.Y. 313; Wheeler v. Cobb, 75 N.C. 21; McDaniel v. McElvy, 91 Fla. 770, 108 So. R. 820. The principle being, as announced by this Court speaking through Mr. Justice STRUM, that "Resort to constructive service by publication is predicated upon necessity, and, if *Page 187 personal service could be effected by the exercise of reasonable diligence, substituted service is unauthorized." The purpose of the substituted service act is to provide reasonable notice to a non-resident, whose person the court cannot bring within the limits of the court's jurisdiction, of the pendency of litigation affecting real property within the court's jurisdiction to which the non-resident claims title. Both the bill of complaint and the affidavit were defective in not alleging that the defendants were residents of a state or country other than the State of Florida, or being residents that they had been absent for more than sixty days or were concealing themselves to avoid service of process. The complainant therefore was not entitled to an order of publication; not being entitled to it, the order, the publication of it and the clerk's certificate were ineffectual to confer jurisdiction for the purpose of the bill. The order pro confesso should have been vacated. Order appealed from is therefore reversed. TERRELL, C. J., AND BROWN, J., concur. WHITFIELD, P. J., AND BUFORD, J., concur in the opinion and judgment. STRUM, J., absent on account of illness.