DANIEL E. SHEA
v.
KITTIE L. CARLTON, ET AL.
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The Florida Supreme Court affirmed a circuit court order that vacated a final foreclosure decree after finding the sheriff's return of service on defendant Kittie L. Carlton was incorrect and that no valid service of process had actually been effected on that necessary party defendant. The court held that equity courts have power to set aside final decrees upon clear and convincing proof of lack of service, though the proper procedure is by bill of review.
A court of equity has the power, upon clear and convincing proof, to vacate a final decree and proceedings taken thereon when it is established that no service of process whatsoever was ever had upon a necessary party defendant, even though the sheriff's return recites service. The proper formal procedure for doing so is by bill of review, though the court may proceed through other means.
“A court of equity has power, upon clear and convincing-proof being established to the effect that no service of process whatsoever was ever had upon a necessary party defendant, although so recited and returned by the sheriff in his official return upon the process issued in the cause, to' vacate its final decree and proceedings being taken thereon, and thereupon to remit the parties to a new consideration by a reinstatement of the cause for further proceedings according to law.”
Establishes the fundamental principle that equity courts can vacate decrees based on lack of service despite a sheriff's official return, upon clear and convincing proof.
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Join FLexlaw to unlock all legal intelligenceA final foreclosure decree had been entered and a master's deed issued thereunder. The circuit court then held a hearing on an informal petition where…
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This appeal was taken from an order of the Circuit Court finding, after final decree of foreclosure and *508issuance of a master’s deed thereunder, that the sheriff’s return of the service of process on one of the defendants was incorrect and untrue, and that in law and in fact no service of process whatsoever was had at all upon the defendant, Kittie L. Carlton, in manner and form as returned by the sheriff.
The order appealed from was made pursuant to an informal petition filed in that particular cause wherein the-final decree had been entered, and the order as made contains a recital in terms that it was entered only upon the “Court having taken and heard the testimony of witnesses-for both complainant and defendant.” The testimony referred to is not brought here in the transcript, nor are we-advised officially of what it consisted at the hearing.
A court of equity has power, upon clear and convincing-proof being established to the effect that no service of process whatsoever was ever had upon a necessary party defendant, although so recited and returned by the sheriff in his official return upon the process issued in the cause, to' vacate its final decree and proceedings being taken thereon, and thereupon to remit the parties to a new consideration by a reinstatement of the cause for further proceedings according to law. But the formal method of procedure for so doing is by means of a bill in the nature of a bill of review setting up the equitable facts upon which the final decree and proceedings based thereon, are requested to be opened up and set aside. Miami Bank & Trust Co. v. Mahlstedt, 107 Fla. 282, 144 Sou. Rep. 659.
No objection to the form of procedure pursued in this-case was raised by appellant in the court below, so far as-the record shows. Nor are we advised from the transcript upon what evidentiary considerations the Chancellor acted in making his order setting aside the final decree and thereby reinstating the cause on the docket for further hearing and *509consideration. Nor does reversible error appear in the proceedings disclosed by that part of the record that is before us.
In view of the circumstance that it is obvious' to us from the transcript and examination we have made of it with the aid of appellant’s brief, that the order appealed from must inevitably be affirmed when this case is finally reached ■on our docket in due course, we affirm it now by denying the appellees’ motion to dismiss the appeal as frivolous and entering a judgment disposing of the appeal on its merits. See Dayton v. State Life Ins. Co., 114 Fla. 538, 154 Sou. Rep. 208.
Affirmed on motion to dismiss as frivolous.
Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.
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Citator
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Treat v. State, 121 Fla. 509 (Fla. 1935)…. Section 4639 C. G. L. 2920 R. G. S.; Butler Farms, Inc., v. Hinson, 113 Fla. 860, 152 Sou. Rep. 720; Ronald v. State, ex rel. Harris, 113 Fla. 859, 152 Sou. Rep. 721; Dayton v. State Life Ins. Co., 114 Fla. 538, 154 Sou. Rep. 208; Shea v. Carlton, 116 Fla. 507, 156 Sou. Rep. 495. A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever su…
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Cohen v. Cohen, 70 So. 2d 362 (Fla. 1954)…lower Court were based upon evidentiary matters or a record which is not included in the transcript on appeal, it is impossible for this Court to review the orders of the lower Court. Grantham v. Grantham, 140 Fla. 120, 191 So. 197; Shea v. Carlton, 116 Fla. 507, 156 So. 495. It is proper that the defense of res adjudicata be raised by motion where the facts supporting such motion appear from the bill of complaint. Keen v. Brown, 46 Fla. 487, 35 So. 401. The order of the Chancellor dismissing the bill of…
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Burnetha Fleming v. Fleming, 130 Fla. 264 (Fla. 1937)…ill of review, by which means a final decree in chancery can be directly attacked and set aside upon equitable principles, through resort to those equitable processes which are not collateral but direct in their nature.” In Shea v. Carlton, et al., 116 Fla. 507, 156 Sou. 495, it was held: “A court of equity has power, upon clear and convincing-proof being established to the effect that no service of proc [*266] ess whatsoever was ever had upon a necessary party defendant, although so recited and returned…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miami Bank & Tr. Co. v. Minna Marie Mahlstedt, 107 Fla. 282 (Fla. 1932)
- Dayton v. The State Life Ins. Co., 114 Fla. 538 (Fla. 1934)