ALEXANDER MUNRO AND ESTHER L. MUNRO, HIS WIFE, APPELLANTS,
v.
J. A. BECHARD AND LOUISE F. BECHARD, HIS WIFE, APPELLEES
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The appellate court affirmed a lower court's decision to set aside a prior quiet title decree due to intrinsic fraud. While the lower court erred in its reasoning regarding defective service by publication, the overall decision to vacate the original decree was upheld based on sufficient evidence of fraud.
The appellate court held that the lower court erred in its reasoning regarding the defective service by publication. However, the appellate court affirmed the lower court's decision to set aside the prior decree, finding sufficient evidence of fraud.
“But the decree appealed from is affirmed on the ground that there was sufficient evidence before the chancellor to support his decision in setting aside the prior decree for fraud.”
This quote establishes the primary reason for affirming the lower court's decision, despite a disagreement on one point of law.
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Join FLexlaw to unlock all legal intelligenceAppellants obtained a quiet title decree two years prior. Appellees later sought to set aside this decree, alleging intrinsic fraud on the court. The …
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This is an appeal from a final decree setting aside, for intrinsic fraud on the court, a quiet title decree which had been entered two years earlier. The decree also ruled that service by publication on a named part owner on the basis of residence unknown “if living” or if dead his heirs, etc., was defective. The chancellor erred in rejecting the service by publication, which, otherwise regular, was held to be bad on a showing that a skilled subsequent investigation extending over a period of months revealed that the party in question was dead and resulted in locating his heirs in California. The predicate for service by publication against the particular named defendant, as having an unknown place of residence, and if dead on his unknown heirs, was not shown to be insufficient under the established rule, as set out in McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831-832, 51 A.L.R. 731; Balian v. Wekiwa Ranch, 97 Fla. 180, 122 So. 559, 563-564; Grammer v. Grammer, Fla.1955, 80 So.2d 457. But the decree appealed from is affirmed on the ground that there was sufficient evidence before the chancellor to support his decision in setting aside the prior decree for fraud. See Cook v. Rochford, Fla.1952, 60 So.2d 531, 32 A.L.R. 2d 1210.
Affirmed.
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Demars v. Vill. OF Sandalwood Lakes Homeowners Ass'n, Inc., 625 So. 2d 1219 (Fla. 4th DCA 1993)…he sworn statement for constructive service is a clear compliance with the statutory requirements of section 48.04, F.S.1951 [now section 49.041], and this fact is not questioned.” Id. at 459. The Third District followed Grammer in Munro v. Bechard, 132 So. 2d 429 (Fla. 3d DCA 1961). The same conclusion was reached in Larsen v. Larsen, 180 So. 2d 393 (Fla. 1st DCA 1965). The trial court had denied a complaint to set aside a divorce decree which complaint had alleged that the husband had falsely sworn that he…
Authorities Cited
- Nannie McDaniel v. McElvy, 108 So. 820 (Fla. 1926)
- Artin Balan v. The Wekiwa Ranch, 97 Fla. 180 (Fla. 1929)
- Grammer v. Grammer, 80 So. 2d 457 (Fla. 1955)
- Cook v. Rochford, 60 So.2d 531 (Fla. 1952)