KING WYLLY AND LOUISE WYLLY, HIS WIFE, APPELLANTS
v.
THE SANFORD LOAN & TRUST COMPANY, APPELLEE
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The Florida Supreme Court reversed a foreclosure decree against non-resident defendants where service of process by publication failed to comply with statutory requirements. The court held that strict compliance with publication statutes is necessary to acquire jurisdiction over non-residents, and the defective service here rendered the foreclosure decree void.
The court held that strict and accurate compliance with statutory requirements for service by publication is necessary to acquire jurisdiction over non-resident defendants. The defective service rendered the foreclosure decree void and required reversal. However, the appeal itself operated as an appearance, allowing the court below to proceed with proper service.
“In order that the court should acquire jurisdiction of non-resident defendants by constructive service of process by publication, it is necessary that the provisions of the statute authorizing such service be strictly and accurately pursued.”
Establishes the strict compliance standard required for service by publication to acquire jurisdiction over non-residents.
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Join FLexlaw to unlock all legal intelligenceAppellee filed a bill for foreclosure of mortgage against appellants, who were non-residents. Service of process was attempted by publication. A decre…
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Maxwell, J.,
This cause was referred by the court to its late commissioners, who reported it for reversal.
A bill for foreclosure of .mortgage was filed by appellee, complainant below, against appellants, and service of process upon defendants attempted by publication.. Decree pro confesso was entered against defendants,, followed by a final decree of foreclosure. From this decree defendants, who had not appeared in the court below, appeal to this court, assigning as error various alleged irregularities in the service of process upon them , by publication.
In order that the court should acquire jurisdiction of non-resident defendants by constructive service of process by publication, it is necessary that the provisions of the statute authorizing such service be strictly and accurately pursued. Shrader v. Shrader, 36 Fla. 502, 18 South. Rep. 672.
One of the requiremets of our statute is that the clerk “shall also within twenty days of the making of the order” for publication “send by mail a copy to the defendant if his residence be shown by the bill or affidavit.” Rev. Stats. Sec. 1413, 2; Chap. 4129, acts of 1893. In this case there were two defendants, both non-residents, and the certificate of the clerk filed, as-required by section 1445 Rev. Stats., is that he “mailed copies of said -order to the address of defendant as given in the affi•davit of complainant.” This shows, at best, service upon one only, of the defendants, and the uncertainty upon which of them such‘service was made renders it prima facie void as to both. Likens v. McCormick, 39 Wis. 313; Dennison v. Taylor, 142 Ill. 45, 31 N. E. Rep. 148. See, also, Richardson v. Thompson, 41 Ill. 202; Gamble v. Warner, 16 Ohio, 371; Standley v. Arnow, 13 Fla. 361; Finlayson v. Lipscomb, 16 Fla. 751.
The decree of the court below, therefore, was rendered • against parties of whom the court is not shown to have •.acquired jurisdiction, and must be set aside.
'The appeal of the defendants operated as an appearance in the cause, however, which will enable the court below now to proceed in the matter. Stanley v. Arnow, and Finlayson v. Lipscomb, supra.
The decree is reversed and the cause remanded with directions to vacate the decree pro confesso heretofore entered against the defendants, and for further proceedings in accordance with law.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Ortell v. Ortell, 91 Fla. 50 (Fla. 1926)…s authorizing constructive service of process by publication should be strictly and exactly pursued in order ot give a court jurisdiction of the person of the defendant. Shrader v. Shrader, 36 Fla. 502, 18 So. 672; Wylly v. Sanford Loan & Trust Co., 44 Fla. 818, 33 So. 453. Section 3111 of the Revised General Statutes of 1920 reads in part as follows: “Whenever the complainant, his agent or attorney, shaill state in a sworn bill or affidavit, duly filed, the belief of the affiant that the defendant is a re…1 / 2
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Smetal Corp. v. W. Lake Inv. Co., 126 Fla. 595 (Fla. 1936)…g constructive service of process by publication must be strictly construed and fully complied with in order to give a court jurisdiction of the person of the defendant. Shrader v. Shrader, 36 Fla. 502, 18 So. 672; Wyley v. Sanford Loan & Trust Co., 44 Fla. 818, 33 So. 453; Ortell v. Ortell, 91 Fla. 50, 107 So. 442; Tibbetts v. Olson, 91 Fla. 824, 108 So. 679; Reynolds v. Harrison, 91 Fla. 834, 106 So. 909; State v. Gray, 92 Fla. 1123, 111 So. 242. Such strict construction is all the more important in vie…
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Lybass v. The Town of Fort Myers, 56 Fla. 817 (Fla. 1908)…s a failure to comply with the essential requirements of the statute, as in Shrader v. Shrader, 36 Fla. 502, 18 South. Rep. 672, or that it appears that only one and not which one of the defendants was served as in Wylly v. Sanford Loan & Trust Co., 44 Fla. 818, 33 South. Rep. 453. A decree pro confesso is authorized against a defendant in an equity suit only when there has been proper service of process or its equivalent in waiver or appearance, and a failure to plead, answer or demur to the bill of comp…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shrader v. Aurelia Shrader, 36 Fla. 502 (Fla. 1895)
- Penelope L. Standley v. Arnow, 13 Fla. 361 (Fla. 1869)
- Finlayson v. Lipscomb, 16 Fla. 751 (Fla. 1878)