Wylly v. Sanford Loan & Trust Co.

44 Fla. 818

• Court: Supreme Court of Florida
• Decided: June 15, 1902
• Status: Published

Opinion

Maxwell, J.,

This cause was referred by the court to its late commissioners, who reported it for reversal.

A bill for foreclosure of .mortgage was filed by appellee, complainant below, against appellants, and service of process upon defendants attempted by publication.. Decree pro confesso was entered against defendants,, followed by a final decree of foreclosure. From this decree defendants, who had not appeared in the court below, appeal to this court, assigning as error various alleged irregularities in the service of process upon them , by publication.

In order that the court should acquire jurisdiction of non-resident defendants by constructive service of process by publication, it is necessary that the provisions of the statute authorizing such service be strictly and accurately pursued. Shrader v. Shrader, 36 Fla. 502, 18 South. Rep. 672.

One of the requiremets of our statute is that the clerk “shall also within twenty days of the making of the order” for publication “send by mail a copy to the defendant if his residence be shown by the bill or affidavit.” Rev. Stats. Sec. 1413, 2; Chap. 4129, acts of 1893.

In this case there were two defendants, both non-residents, and the certificate of the clerk filed, as- required by ■ section 1445 Rev. Stats., is that he “mailed copies of said -order to the address of defendant as given in the affi•davit of complainant.” This shows, at best, service ■upon one only, of the defendants, and the uncertainty upon which of them such‘service was made renders it prima facie void as to both. Likens v. McCormick, 39 Wis. 313; Dennison v. Taylor, 142 Ill. 45, 31 N. E. Rep. 148. See, also, Richardson v. Thompson, 41 Ill. 202; Gamble v. Warner, 16 Ohio, 371; Standley v. Arnow, 13 Fla. 361; Finlayson v. Lipscomb, 16 Fla. 751.

The decree of the court below, therefore, was rendered • against parties of whom the court is not shown to have •.acquired jurisdiction, and must be set aside.

'The appeal of the defendants operated as an appearance in the cause, however, which will enable the court below now to proceed in the matter. Stanley v. Arnow, and Finlayson v. Lipscomb, supra.

The decree is reversed and the cause remanded with ■directions to vacate the decree pro confesso heretofore entered against the defendants, and for further proceedings in accordance with law.