RALPH J. VOORHIES, ET UX.
v.
MABEL ELDRIDGE BARNSLEY, EXECUTRIX
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The Florida Supreme Court affirmed a foreclosure decree against the Voorhies, rejecting their challenges to the executrix's authority to sue and to the service of process on a co-defendant. The court held that procedural objections raised for the first time after final decree and that service defects not timely challenged are waived.
The objections were untimely and waived. The court held that objections to an executrix's marital status and capacity must be raised before final decree, not afterward. Additionally, service defects that provide adequate notice are not rendered void when a co-defendant fails to timely object thereto.
“Appellants' objection that plaintiff below in the foreclosure suit was a married woman suing as executrix without joinder of her husband or next friend, and that the husband of said plaintiff executrix had not consented to her appointment as such, came too late when it was interposed for the first time after final decree and only in the form of an 'objection to confirmation of the foreclosure sale.”
Establishes that procedural objections to an executrix's capacity must be raised timely before final decree, not after.
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Join FLexlaw to unlock all legal intelligenceMabel Eldredge Barnsley, as executrix of May Eldredge's estate, obtained a final foreclosure decree against Ralph J. Voorhies, his wife Adele, Roy Hou…
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Mabel Eldredge Barnsley, as executrix of the estate of May Eldredge, deceased', obtained a final decree of foreclosure of a mortgage against Ralph J. Voorhies, Adele Voorhies, his wife, Roy Hough and YowellDrew Lumber Company, a corporation. Ralph J. Voorhies and his wife have appealed from the final decree and a supplementary order overruling their objections to confirmation of the master’s sale of the mortgaged property.
Appellants’ objection that plaintiff below in the foreclosure suit was a married woman suing as executrix without joinder of her husband or next friend, and that the husband of said plaintiff executrix had- not consented to her appointment as such, came too late when it was interposed for the first time after final decree and only in the form of an 'objection to confirmation of the foreclosure sale.
>• There wás a sufficient return of service of process on the ^defendant, Roy Hough, -to bring that defendant before the _Court and give the "Court juirsdiction over his person, so that if for any reason said defendant deemed the return of *193service to be irregular, the burden was placed on him to raise such objection affirmatively. This such defendant did not do.
Where service of process is irregular or voidable, but constitutes such notice of the pending proceedings as to require a served defendant to respond to the court, either waiving the alleged defects or contesting the service or return by special objection thereto, the defect does not render the judgment void and may be waived by a joint defendant’s failure to object thereto. See Walker v. Carver, 93 Fla. 337, 112 Sou. Rep. 45.
The decrees appealed from are affirmed.
Whitfield, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Craven v. J. M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969)…regular but actually gives the defendant notice of the action or proceeding, a judgment based thereon has been held not to be void hut merely voidable. State ex rel. Gore v. Chillingworth, 1936, 126 Fla. 645, 171 So. 649; Voorhies v. Barnsley, 1934, 116 Fla. 191, 156 So. 234; Walker v. Carver, 1927, 93 Fla. 337, 112 So. 45; 49 C.J.S. Judgments § 24 at p. 61. The initial return in the instant case was irregular but the service was sufficient to put the defendant on notice of a proceeding instituted against…
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Balliro v. Goldman, 379 So. 2d 166 (Fla. 3d DCA 1980)…PER CURIAM. Affirmed. See Voorheis v. Barnsley, 116 Fla. 191, 156 So. 2d 234 (1934); Claffey v. Serafino, 338 So. 2d 270 (Fla.2d DCA 1976); Perry v. University Cabs, Inc., 344 So. 2d 914 (Fla.3d DCA 1977); Allen v. Wright, 350 So. 2d 111 (Fla. 1st DCA 1977); Westinghouse Credit Corporation v. Steven Lake Maso…
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Nigerian AIR Force v. van Hise, 443 So. 2d 273 (Fla. 3d DCA 1983)…tack was made within a reasonable period of time and therefore the trial court should be sustained in its denial of relief, NAF having notice of the original proceeding. State v. Chillingworth, 126 Fla. 645, 171 So. 649 (1936); Voorhies v. Barnsley, 116 Fla. 191, 156 So. 234 (1934); Walker v. Carver, 93 Fla. 337, 112 So. 45 (1927); Craven v. J.M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969). The federal congress with the adoption of Section 1602 et seq, Title 28 U.S.C. code has established a uniform pr…
Authorities Cited
- Walker v. Alva R. Carver, 93 Fla. 337 (Fla. 1927)