Lucian v. Southern Ohio Savings Bank & Trust Co.

Supreme Court of Florida

Lucian v. Southern Ohio Savings Bank & Trust Co.

23 So. 2d 674, 156 Fla. 370, 1945 Fla. LEXIS 858

CourtSupreme Court of Florida

DecidedJanuary 30, 1945

StatusPublished

Cited by4 cases

This text of 23 So. 2d 674 (Lucian v. Southern Ohio Savings Bank & Trust Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lucian v. Southern Ohio Savings Bank & Trust Co., 23 So. 2d 674, 156 Fla. 370, 1945 Fla. LEXIS 858 (Fla. 1945).

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On consideration of this case June 6, 1944, certiorari was denied. 18 So.2d 27. When the mandate went down, the cause was heard by the Chancellor on decree pro confesso, which defendant moved to vacate and tendered an answer. The Chancellor promptly denied the plaintiff's application for a final decree based on the decree pro confesso, vacated and set aside the decree pro confesso and granted the defendant's application to file her answer. Defendant then announced that she had no testimony to offer except the record and proceedings *Page 371 in Leonora Forney Burkhart v. William S. Burkhart, decided June 10, 1941. The Chancellor found that the decree in the latter case was void for want of service on Burkhart and entered final decree as prayed for in the bill. The instant appeal is from the final decree.

Counsel are at variance as to questions presented. Appellant contends that appellee should not have been permitted to intervene that he should have been permitted to prove his bill and that Burkhart's conduct amounted to a general appearance. The appellee contends on the other hand that the whole question turns on the question of service on Burkhart and that that question is concluded against appellant by Pennoyer v. Neff,95 U.S. 714, 5 Otto 565.

In Rorick v. Stilwell, 101 Fla. 4, 133 So. 609, we held that any motion involving the merits or in recognition of the suit amounted to a general appearance regardless of the movant's intention. A majority of the court are of the view that under the rule in Rorick v. Stilwell, supra, Burkhart's conduct amounted to a general appearance. When all is said, the point in the case is to avoid a judgment predicated on a prenuptial contract, a separation agreement, and a divorce decree. No case in the history of this Court has been here so many times. We think every element of service was implicit in the litigation. Pennington v. Fourth National Bank of Cincinnati, 243 U.S. 269,37 Sup. Ct. 282, 61 L.Ed. 713.

Reversed on authority of Rorick v. Stilwell, supra, for further proceedings.

CHAPMAN, C. J., BUFORD and THOMAS, JJ., concur.

BROWN and SEBRING, JJ., dissent.

ADAMS, J., not participating.

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On consideration of this case June 6, 1944, certiorari was denied. 18 So.2d 27. When the mandate went down, the cause was heard by the Chancellor on decree pro confesso, which defendant moved to vacate and tendered an answer. The Chancellor promptly denied the plaintiff's application for a final decree based on the decree pro confesso, vacated and set aside the decree pro confesso and granted the defendant's application to file her answer. Defendant then announced that she had no testimony to offer except the record and proceedings *Page 371 in Leonora Forney Burkhart v. William S. Burkhart, decided June 10, 1941. The Chancellor found that the decree in the latter case was void for want of service on Burkhart and entered final decree as prayed for in the bill. The instant appeal is from the final decree.

Counsel are at variance as to questions presented. Appellant contends that appellee should not have been permitted to intervene that he should have been permitted to prove his bill and that Burkhart's conduct amounted to a general appearance. The appellee contends on the other hand that the whole question turns on the question of service on Burkhart and that that question is concluded against appellant by Pennoyer v. Neff,95 U.S. 714, 5 Otto 565.

In Rorick v. Stilwell, 101 Fla. 4, 133 So. 609, we held that any motion involving the merits or in recognition of the suit amounted to a general appearance regardless of the movant's intention. A majority of the court are of the view that under the rule in Rorick v. Stilwell, supra, Burkhart's conduct amounted to a general appearance. When all is said, the point in the case is to avoid a judgment predicated on a prenuptial contract, a separation agreement, and a divorce decree. No case in the history of this Court has been here so many times. We think every element of service was implicit in the litigation. Pennington v. Fourth National Bank of Cincinnati, 243 U.S. 269,37 Sup. Ct. 282, 61 L.Ed. 713.

Reversed on authority of Rorick v. Stilwell, supra, for further proceedings.

CHAPMAN, C. J., BUFORD and THOMAS, JJ., concur.

BROWN and SEBRING, JJ., dissent.

ADAMS, J., not participating.

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23 So. 2d 674, 156 Fla. 370, 1945 Fla. LEXIS 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucian-v-southern-ohio-savings-bank-trust-co-fla-1945.

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