SIDNEY STERN AND BELLE STERN, HIS WIFE, APPELLANTS,
v.
HARRY RAYMOND AND - RAYMOND, HIS WIFE; JOHN O. PERRY AND AGNES PERRY, HIS WIFE; CHARLES D. PARTRICK AND MARIAN H. PARTRICK, HIS WIFE, AND E. A. CARTER AND SARAH L. MARTIN, APPELLEESS
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The Florida Supreme Court reversed a trial court order dismissing a bill of complaint seeking to vacate a foreclosure decree and sale confirmation, holding that allegations of defective constructive service (publication in wrong manner) in the underlying foreclosure suit raised a valid claim that the original decree was void for lack of jurisdiction.
The court held that if the allegations regarding improper publication of notice in the original foreclosure suit are true, the foreclosure decree is void for lack of jurisdiction, and a suit to set aside such void decree may be maintained at any time. Therefore, the trial court erred in sustaining the demurrers and dismissing the bill without considering these jurisdictional allegations.
“if the allegations in regard to the publication of the notice by which constructive service was attempted to have been had upon the defendants in the suit to foreclose the paving lien as evidenced by the paving certificate, are true, then the decree of foreclosure of such lien was void because the court had not acquired jurisdiction of the parties”
Establishes the core holding that defective service prevents court jurisdiction and renders decree void
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Join FLexlaw to unlock all legal intelligenceSterns brought a suit to vacate a foreclosure decree and sale confirmation from an earlier paving lien foreclosure case. The foreclosure decree was en…
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Buford, J.
This was a suit brought to vacate a decree and an order confirming a sale of certain property, the decree having been obtained in a suit to foreclose a paving lien evidenced by a certain paving certificate. The final decree in that case was made and entered on the 6th day of December, 1S'24. The order confirming the sale was made on January 21, 1925.
On March 25, 1926, bill was filed seeking to vacate the decree and all subsequent orders made thereunder. After the bill was amended demurrers were submitted to the bill as amended and, thereafter, on the 16th day of October, 1926, the court made an order sustaining the demurrers and dismissing the bill of complaint.
On the 15th day of November, 1926, a petition for rehearing was filed, which petition was sworn to by the complainants in the court below, the appellants here. In this petition for rehearing it was alleged under oath that constructive service was attempted to be had in the original suit on the defendants, the complainants in this suit, by publication and that such notice was not published in a newspaper as required by law; that no service of process had been had on the defendants in the original suit, the complainants in the instant suit, and that the court had not in the suit brought to foreclose the paving lien as evidenced by the paving certificate, acquired jurisdiction of the parties. There were other allegations contained in the petition for rehearing and without intimating what the legal effect of the other allegations might be, we must hold that if the allegations in regard to the publication of the notice b} • which constructive service was attempted to have been had upon the defendants in the suit to foreclose the paving lien as evidenced by the paving certificate, are true, then the decree of foreclosure of such lien was void because the court had not acquired jurisdiction of the parties. State ex rel. Yaeger v. Rose, 95 Fla. -, 114 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.
Therefore, the petition of the complainants in the court below, the appellants here, to vacate the order dismissing their bill of complaint should have been granted with leave to amend such bill of complaint.
The order denying rehearing is reversed, with directions that the order dismissing the bill of complaint be vacated and that the complainants in the court below, the appellants here, be allowed to amend their bill of complaint as proposed in the motion for rehearing and that the cause do proceed according to law and the rules of practice.
Reversed in part.
Whitfield, P. J., and Terrell, J., concur. Ellis, C. J., and Strum and Brown, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Klinger v. Milton Holding Co., 136 Fla. 50 (Fla. 1938)…oidable upon proper attack by the defendant Klinger as against the complainant in the foreclosure suit; and if so, what effect does this have as against Mrs. Lummus, who purchased the property from such complainant? In the case of Stern v. Raymond, 95 Fla. 410, 116 So. 6, the affidavit for publication was sufficient, but there was no actual publication of the order and no filing of the proof of publication. Thus the record itself showed that the requirements of the statute had not been carried out and the…1 / 2
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Millie Dooley McGee v. McGee, 156 Fla. 346 (Fla. 1945)…onstructive 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 against the defendant in this ease r…
Authorities Cited
- Shrader v. Aurelia Shrader, 36 Fla. 502 (Fla. 1895)
- The State of Fla. on the Relation of Melvina B. Yaegar v. Rose, 93 Fla. 1018 (Fla. 1927)
- Wilson v. Drumright, 87 Fla. 202 (Fla. 1924)
- Cobb v. Hawsey, 56 Fla. 159 (Fla. 1908)
- Myakka Co. v. Edwards, 68 Fla. 382 (Fla. 1914)