JACOB I. WILSON, APPELLANT,
v.
E. B. DRUMRIGHT, AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF KATHRYNE CATE, DECEASED, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Jacob I. Wilson appealed a final decree quieting title to real property in favor of Kathryne Cate's estate, challenging the validity of service by publication. The Florida Supreme Court reversed, holding that the bill of complaint failed to comply with statutory requirements for service by publication in quiet title actions.
The court held that service by publication was invalid because the bill of complaint failed to comply with the statutory requirements. The allegations that the respondents were unknown and that their ages, names, and residences were unknown were insufficient; the statute required allegations that the complainant had made an effort to ascertain whether a known person believed to be interested was living or dead, which was entirely absent from the complaint.
“if the complainant shall allege in his sworn bill that he does not know and has not been able to ascertain whether any person believed by complainant to be intterested in such property, or, if dead, to have been interested therein, is dead or alive, he may make such person a defendant by name, and may also make the heirs, devisees, grantees or other claimants under such person parties defendant to said bill of complaint”
This quote establishes the statutory requirement for service by publication—the complainant must allege that he made an effort to ascertain whether a known person is dead or alive.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKathryne Cate filed a bill of complaint to quiet title to certain lands, naming Jacob I. Wilson (if living) and his unknown heirs, devisees, grantees,…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Legal Sufficiency Of Allegations cases and more on FLexlaw
Whitfield, P. J.
The bill of complaint herein is by Kathryne Cate, Trustee, against Jacob I. Wilson, if living, and. if dead against the unknown grantees, devisees, heirs or assigns of the said Jacob I. Wilson, whose several ages, names and residences are unknown.to your oratrix.” Its purpose is to quiet title to lands that are situated within the jurisdiction of the court. In such sworn bill it is alleged that “each of said respondents being unknown to your orator, and the ages and residences of all claimants in and to said premises are unknown to your oratrix, she prays that due order of publication may be issued herein in accordance with requirements of Chapter 8465, Acts of the year 1921, G-eneral Acts of the Legislature of the State of Florida and otherwise as shall be required by the laws of the State of Florida.”
An order of service by publication was made and publication had. Final decree for complainant was rendered. Complainant died, and her executor was by stipulation made party complainant. Subsequently Jacob I. Wilson appeared and appealed from the final decree.
The only question presented is whether there was a valid service by publication.
The statute, Chapter 8465 Acts of 1921, provides that “if the complainant shall allege in his sworn bill that he does not know and has not been able to ascertain whether any person believed by complainant to be intterested in such property, or, if dead, to have been interested therein, is dead or alive, he may make such person a defendant by name, and may also make the heirs, devisees, grantees or other claimants under such person parties defendant to said bill of complaint, and any final decree rendered upon such bill of complaint after service had as prescribed by law shall be conclusive upon such known person, if alive, and upon the heirs, devisees, grantees or other claimants under such known person, if dead. Decree pro confesso may be entered against the defendants so designated, as in other cases of service by publication, and a guardian ad litem shall be appointed to defend the interests of such defendants, as now provided by Section 3155 of the Revised General Statutes of Florida.”
It is manifest that the statute was not complied with by the recital that the bill is brought “against Jacob I. Wilson if living, and if dead against the unknown grantees” &c., “whose several ages, names and residences are unknown to your oratrix,” and by the mere allegation in the sworn bill of complaint that “each of said respondents being unknown to your oratrix, and the ages and residences of all claimants in and to said premises are unknown to your oratrix, who prays” &c., there being no allegations that complainant had made an effort and had not been able to ascertain whether any known person believed to be interested is living or dead, even if there were other sufficient positive allegations to meet the requirements of the statute. The allegations contained in the bill of complaint were not sufficient as a legal predicate for constructive service so as to give the court jurisdiction to proceed in the cause. See Cobb v. Hawsey, 56 Fla. 159, 47 South. Rep. 484; Schrader v. Shrader, 36 Fla. 502, 18 South. Rep. 672.
Reversed.
West and Terrell, J. J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Klinger v. Milton Holding Co., 136 Fla. 50 (Fla. 1938)…4 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…
-
Cone v. Lottie K. Benjamin, 157 Fla. 800 (Fla. 1946)…broader in its terms than Chapter 5393, Acts of 1905, and the cases cited applying to the older statute are not controlling here; such for instance as the case of Cobb v. Hawsey, 56 Fla. 159, 47 So. 484. The case of Wilson v. Drumright, 87 Fla. 202, 99 So. 553, though dealing with the latter act, is not in point on the facts. Nor is Brecht v. Bur-Ne, 91 Fla. 345, 108 So. 173, in the way. That was a suit to quiet title. In the opinion it was said that the statute did not authorize suits against “unknown pe…
-
Millie Dooley McGee v. McGee, 156 Fla. 346 (Fla. 1945)…tute, a decree rendered upon constructive service is void as to the parties who have not appeared or pleaded in the cause. Shrader v. Shrader, 36 Fla. 502, 18 So. 672; Myakka Co. v. Edwards, 68 Fla. 382, 67 So. 217; Wilson v. Drumright, 87 Fla. 202, 99 So. 553; Stern v. Raymond, 95 Fla. 410, 116 So. 6; United Brotherhood of Carpenters and Joiners of America v. Graves Inv. Co., et al., 153 Fla. 529, 15 So. (2nd) 196. The sworn statement upon which the plaintiff sought constructive service of process again…
Previewing 3 of 7 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)
- Cobb v. Hawsey, 56 Fla. 159 (Fla. 1908)