Reybine v. Kruse

174 So. 720, 128 Fla. 278, 1937 Fla. LEXIS 1252

• Court: Supreme Court of Florida
• Decided: May 21, 1937
• Status: Published

Opinions

Davis, J.

We think the order appealed from should be affirmed. The case of Rome Insurance Co. v. Corbett, 66 Fla. 438, 63 Sou. Rep. 833, holds that our constructive service statute is broad enough to apply to any suit in equity pending in our Circuit Courts. The decision just cited has been approved and followed as applied to a non-resident banking corporation not doing, nor authorized to do, business in Florida. Tax Securities Corp. v. Bird, 114 Fla. 840, 155 Sou. Rep. 155. In Royalty v. The Florida National Bank, decided here April 6, 1937, reported in 127 Fla. 618, 173 Sou. Rep. 689, we held the constructive service statute of the State to be applicable to an executrix who resided in Chattanooga, Tennessee.

In this case the appellee’s bill was filed to vacate and set aside, on the ground of fraud, an order dismissing an action at law. It was properly filed in the Circuit Court of Dade County, and indeed, under our recent decisions, could have been filed nowhere else. See: Bemis v. Loftin, decided here March 23, 1937, reported in 127 Fla. 515, 173 Sou. Rep. 683, and .cases cited therein.

An equity suit of this character is in the nature of an action in rem directed against the former judgment or decree and is founded upon the initial jurisdiction that the Circuit Court first acquired over the original action before it was fraudulently induced to be dismissed. In contemplation of law an order procured to be entered dismissing a pending cause is not final if it was procured by fraud and the original jurisdiction over the dismissed cause as first. acquired, continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case, either by means of an independent bill in equity directed against the fraudulently induced order or judgment to have it set aside, or sometimes by means of a direct motion filed in the case itself praying) that the order of dismissal be vacated and the cause returned to the docket of pending cases. See: Bryant v. Bryant, 101 Fla. 179, 133 Sou. Rep. 635; Cone v. Cone, 102 Fla. 793, 136 Sou. Rep. 466; State, ex rel. Willys, v. Chillingworth, 124 Fla. 274, 168 Sou. Rep. 249; Miami Bank & Trust Co. v. Mahlstedt, 107 Fla. 282, 144 Sou. Rep. 659; Kroier v. Kroier, 95 Fla. 865, 116 Sou. Rep. 652; Chisholm v. Chisholm, 98 Fla. 1196, 125 Sou. Rep. 694.

A bill in equity to set aside a Circuit Court judgment dismissing an action at law, when predicated on allegations of extrinsic fraud by reason of which it is prayed that the order or judgment of dismissal of the law action be annulled by an equitable decree for the extrinsic fraud practiced, is maintainable in this State. Rawlins v. Rawlins, 18 Fla. 345; Shrader v. Shrader, 36 Fla. 502, 18 Sou. Rep. 672; State, ex rel. Willys, v. Chillingworth, supra.

Such a bill is in the nature of a proceeding in rem against the decree, order or judgment sought to be so annulled, and the parties to the attacked decree, order or judgment, if not within the reach of personal service of process are capable of being reached by constructive service as in any other chancery suit. I know of no exception to this general rule (which is amply sustained by our own decisions) merely because one of the parties to the attacked order, judgment or decree is a foreign executrix.

The order appealed from should be affirmed and it is so ordered.

Whitfield, P. J., and Brown, J., concur. Terrell, J., concurs in the opinion and judgment. Ellis, C. J., and Buford, J., dissent.