florida statutes of i 94 r...section or the constitution to institute in the name of the state and...

Florida Statutes of I 94 r Volume II

1947 Cumulative Supplement

TITLE I.

CONSTRUCTION OF STATUTES.

CHAPTER 1.

Definitions.

§ 1.02 REVISION NOT.l!:.

This section has been revised to comply and agree with United States Standard Time for Florida. The wording of the revised section was obtained from Act of Congress, March 19, 1918, ch. 24, par. 2; 40 U. S. Statutes 451; Title 15, § 262, U. S. C. A. .

The foregoing revision note has been included in this supplement in order to correct an error appearing towards the end of the . note.-Ed. note.

§ 1.03 HISTORY.

Comp. § 1, ch. 24139, 1947.

CHAPTER 2.

Common Law in Force; Repealing Statutes.

§ 2.01 ANNOTATION.

I. COMMON LAW

A. Generally.

Prevails in Florida. In accord with original, see Shinn v. McLeod,

58 F. Supp. 440. .

The common-law writ of certiorari is limited in its function, and the subject matter of a suit that has been tried in a court of competent jurisdiction and thereafter reviewed in an appropriate appellate tribunal will not be reinvestigated, tried and determined upon the merits generally when brought by certiorari. Nation v. State, 155 Fla. 858, 22 So. (2d) 219.

It does not serve as an appeai.-The commonlaw writ of certiorari is issued, not to serve the purpose of an appeal, or to give an aggrieved party a second appea1, but to cause the record of an inferior court to be brought up in order that a superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law. Nation v. State, 155 Fla. 858, 22 So. <2d) 219.

Applied in Kilgore v. Bird, 149 Fla. 570, 6 So. (2d) 541.

Cited in Merchant's Hostess Service v. Cain, 151 Fla. 253, 9 So. (2d) 373.

C. mustrative Cases. 'l''he English statute which gave the writ of

scire facias is in force in this state by virtue of the provisions of this section. Spurway v. Dyer, 48 F. Supp. 255, 257.

There are no statutes regulating the procedure in contempt cases in Florida, thus the commonlaw rules are applicable. Croft v. CUlbreath, 150 Fl<~.. 60, 6 So. (2d) 638.

TITLE II.

STATE ORGANIZATION.

CHAPTER 6.

Admission into Union; Concessions; State Boundaries.

§ 6.02 ANNOTATION.

Cited in Bancroft Inv. Corp. v. Jacksonville, 157 Fla. 546, 27 So. (2d) 162.

§ 6.04 ANNOTATION.

Property that is sold by Federal Government under an executory contract where government retains legal title until purchase price is paid and purchaser goes into possession of land and uses land for private purposes, loses its exemption from state and municipal taxes. .Bancroft Inv. Corp. v. Jacksonville, 157 Fla. 546, 27 So. (2d) 162.

CHAPTER 7.

County Boundaries.

§ 7.17 HISTORY.

Am. §. 1, ch. 23867, 1947:

§ 7.21 ANNOTATION.

Cited in Board of Public Instruction of Gilchrist County v. Board of Public Instruction of Aliadhlua CormJty, 155 Fla. 79, 19 So. (2d') 576.

§ 7.26 HISTORY.

Am. § 7, ch. 22858, 1945.

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/

§ 7.46 1947 CUMULATIVE SUPPLEMENT TO VOLUME ll, FLORIDA STATUTES, 1941

§ 7.46 HISTORY.

Am. § 2, ch. 23867, 1947.

CHAPTER 8.

Congressional Districts.

§ 8.01 HISTORY.

Am. §§ 1-7, ch. 21975, 1943.

§ 8.02 HISTORY.

Am: § 8, ch. 21975, 1943.

§ 8.04 IDS TORY.

Comp. § 10, ch. 21975, 1943.

TITLE III.

LEGISLATIVE DEPARTMENT.

CHAPTER 10.

Sena.te and the Bouse of Representatives.

§ 10.01 HISTORY.

Am. §§ 1-4, ch. 23614, 1945.

§ 10.03 IDS TORY.

Am. §§ 1, 2, 4, ch. 23613, 1945.

CHAPTER 11.

Legislation.

ANNOTATION. § 11.02

Lawmaking power not curta.iled.-This and the following. two sections were never intended to curtail the lawmaking power of the legislature, or to take away from that lawmaking body its legislative discretion to determine the contents of its own enactments, once the required published notice has been given. State v. Miami, 153 Fla. 653, 15 So. (2d) 481, 483; see also Prescott v. Bowrd of Public lnstruction, (Fl<a.), 32 So. (2d) 731.

Method of Notice.-This section is in the disjunctive, hence the notice may be given by either publishing in a newspaper or by posting in public places. Chavous v. Goodbred, 158 Fla. 826, 30 So. (2d) 370.

To throw safeguards around legislation.-In accord with original see Chavous v. Good•bred, 158 FLa. 826, 30 So. (2d) 370 (dis. op.).

§ 11.03 HISTORY.

Am. § 1, ch. 21635, 1943.

ANNOTATION. Cross reference.

See annotation to Fla. Const., art. m, §:U.

Failure to file original aft'idavit in oft'ice of secretary of state.-Fact that a:!Iidavit of proof of publication of notice that apparently accompanied bill when it was first introduced in the house of representatives was not filed and preserved with the original bill in the office of the secretary of state, as required by this section, did not invalidate the bill where notice was actually published and other a:!Iidavits were filed in office of secretary of state. State v. Miami, 153 Fla. 653, 15 So. (2d) 481, 483.

Form of proof of publication.-This section imports no binding effect because it is suggestive only in so f•ar as· ·the form of the ·Pl'OOf of publication is set forth. Chavous v. Goodbred, 158 Fla. 826, 30 So (2d) 370.

§ 11.04 ANNOTATION.

Construction of section.-This section must be construed .tJo mean that the legislature intended to validate and give effect to notices which had theretofore been given by posting in counties where there was a newspaper, but to require all future notices to be published in a newspaper, if there was a newspaper in the county where the matter affected was located. Chavous v. Goodbred, 15& Fla. 826, 30 So. (2d) 370 (dis. op.).

§ 11.12 HISTORY.

Am. §§ 1, 2, ch. 21933, 1943. Am. § 1, ch. 24157, 1947.

ANNOTATION. This section authorizes "such expenses of the

legislature as shall be authorized by a resolution of either house." The reference was to legislative and not to individual expenses. Advisory Opinion to the Governor. 156 Fla. 48, 22 So. (2d) 398.

§ 11.13 HISTORY.

Am. § 3, ch. 21933, 1943.

§ 11.14 HISTORY.

Am. § 4, ch. 21933, 1943. Am. § 2, ch. 23638, 1947.

§ 11.15 HISTORY.

Am. § 5, ch. 21933, 1943.

§ 11.16 HISTORY.

Am. § 6, ch. 21933, 1943.

§ 11.17 HISTORY.

Am. § 7, ch. 21933, 1943.

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1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941 § 16.01

§ 11.18 HISTORY.

Am. § 8, ch. 21933, 1943.

CHAPTER 12.

Census.

§ 12.01 HISTORY.

Camp. § 1, ch. 22515, 1945.

§ 12.02 HISTORY.

Camp. § 2, ch. 22515, 1945.

§ 12.03 HISTORY.

Camp. § 3, ch. 22515, 1945.

§ 12.04 HISTORY.

Camp. § 4, ch. 22515, 1945.

§ 12.05 HISTORY.

Camp. § 5, ch. 22515, 1945.

§ 12.06 HISTORY.

Camp. § 5, ch. 22515, 1945.

§ 12.07 HISTORY.

Camp. § 5, ch. 22515, 1945.

§ 12.08 HISTORY.

Camp. § 5, ch. 22515, 1945.

§ 12.09 HISTORY.

Camp. § 1, ch. 23085, 1945.

TITLE IV.

EXECUTIVE DEPARTMENT.

CHAPTER 14.

Governor.

§ 14.04 HISTORY.

Am. § 7, ch. 22000, 1943. Am § 1, ch. 22913, 1945.

§ 14.14 HISTORY.

Oomp. § 1, clh. 23697, 1947.

§ 14.15 HISTORY.

Camp. § 1, ch. 24291, 1947.

§ 14.16 HISTORY. . I

Camp. § 2, ch. 24291, 1947.

§ 14.17 HISTORY.

Camp. § 3, ch. 24291, 1947.

§ 14.18 HISTORY.

Gomp. § 4, ch. 24291, 1947.

CHAPTER 15.

Secretary of State.


When a bill becomes a.la.w.-Where a legislative bill, regular on its face, has ·been signed by the legislrutive officers who by the coru;ti:tuti()[1 are mandatorily required to sign all bills passed by the legislature, and the bill is .a;pprovedl and signed by tlhe goveTIIlor and by him filed in the office of the secretary of state within the time fixed by the oonsti:tution for <the governor to approve or disapprove it, then such bill is a rec·ord of official acts of the leg·isllliture and executive depaitment of the government a.nd. such bill tlhen becomes a l'aw. State v. Bledsoe, (F1a.J, 31 So. (2d) 457.

The term "All originJal acts and resolutiol!lS passed by the legislature," a.s used in this section, refers solely and only to the original bill · which wa.s inti:t'odiuced i.nJto the legislature, with proper endorsements disclosing the various steps taken in the passage .of the act. State v. Bledsoe, <Fla.), 31 So. (2d) 457.

§ 15.11 HISTORY.

Repealed by§ W, oh. 22012, 1943; see§ 16.50.

CHAPTER 16.

Attorney General.

§ 16.01 HISTORY.

Am. § 7, ch. 22858, 1945.

ANNOTATION. PW"pose of section.-Section 22, Art. IV, of

the Fla. Constitution, among other things, clothes the attorney general with "such other legal duties a.s may be prescribed by law.'' The instant section was designed to embrace "such other legal duties as may be prescribed by la.,w" as provided in the constitution. Holland v. Watson, 153 Fla. 178, 14 So. (2d) 200, 202, , summarizing the duties of the attorney generaL

The attorney general was chief la.w officer under common la.w.-Under the common · law, the attorney general was the chief law officer of the state and his duties were varied and numerous. Holland v. Watson, 153 Fla. 178, 14 So. (2d) 200, 201.

[ 3 ]

§ 16.03 1947 CUMULATIVE SUPPLEMENT TO VOLUME 11; FLORIDA STATUTES, 1941

He is not the legal representative of state board of administration.-There was no intent on the part of the legislature in creating the state board of administration, to extend the duties of the attorney general to that of representing the board. Holland v. Watson, 153 Fla. 178, 14 So. (2d) 200, 203.

He is not counsel for Trustees of Internal Improvement Fund.-There is nothing in this section or the Constitution of Florida which requires the Attorney General to act as attorney or counsel for the Trustees of the Internal Improvement Fund. Watson v. Caldwell, 158 Fla. 1, 27 So. (2d) 524.

Right to test validity of Legislative Act.-The Attorney General is not authorized under this section or the Constitution to institute in the name of the state and of the people of the state an action to test the constitutionality of Chapter 22863, Acts 1945, § 321.15 et seq., 1945 Supplement to Vol. I, F. S. '41 , establishing and providing for the administration of a highway patrol pension fund without showing that his rights of person or property were adversely affected thereby or joining as corelator or corelators any person or persons whose constitutional rights are affected by the provisions of the statute. State v. Kirkman, 158 Fla. 11, 27 So. (2d) 610.

HISTORY. § 16.03

Repealed by§ 10, ch. 22012, 1943; see § 16.44.


Cited in State v. Lee, 156 Fla. 291, 22 So. (2d )

§ 16.21 HISTORY.

Am. § 3, ch. 22000, 1943. Am. § 3, ch. 22858, 1945. Am. § 3, ch. 24337, 1947.

§ 16.22 HISTORY.

Am. § 4, ch. 22000, 1943. Am. § 4, ch. 22858, 1945. Am. § 4, ch. 24337, 1947.

§ 16.23 HISTORY.

Am. § 5, ch. 22000, 1943. Am. § 5, ch. 22858, 1945. Am. § 5, ch. 24337, 1947.

§ 16.23-1 HISTORY.

Comp. §§ 8, 9, ch. 22858, 1945. Am. § 6, ch. 24337, 1947.

§ 16.43 HISTORY.

Comp. § 1, ch. 22012, 1943.

§ 16.44 HISTORY.

Comp. § 2, ch. 22012, 1943.

§ 1~.45 HISTORY.

Comp. § 3, ch. 22012, 1943.

804. HISTORY. § 16.46

§ 16.18 HISTORY.

Repealed by § 10, ch. 22012, 1943 ; see §§ 16.48 and 282.01.

§ 16.19 HISTORY.

Am. § 1, ch. 22000, 1943. Am. § 1, ch. 22858, 1945. Am. § 1, ch. 24337, 1947 . .

ANNOTATION. Vol. 1, Florida Statutes, 1941, went into effect

on July 29th, 1942. Cates v. Heffernan, 154 Fla. 422, 18 So. (2d) 11 (Con. op.).

Cited in Mahood v. Bessemer Properties, 154 Fla. 710, 181 So. (2d) 775, 153 A. L. R. 1199; state v. Lee, 15·6 Fla. 291, 22 So. (2d ) 804.

§ 16.20 HISTORY.

Am. § 2, ch. 22000, 1943. Am. § 2, ch. 22858, 1945. Am. § 2, ch. 24337, 1947.

§ 16.20-1 HISTORY.

Comp. § 6, ch. 22858, 1945.

Comp. § 4, ch. 22012, 1943.

§ 16.47 HISTORY.

Comp. § 5, ch. 22012, 1943.

§ 16.48 HISTORY.

Comp. § 6, ch. 22012, 1943. Am. § 1, ch. 22768, 1945. Am. § 7, ch. 24337, 1947.

§ 16.49 HISTORY.

Comp. § 7, ch. 22012, 1943.

§ 16.50 HISTORY.

Comp. § 8, ch. 22012, ·1943.

§ 16.51 HISTORY.

Comp. § 9, ch. 22012, 1943.

§ 16.52 HISTORY.

Comp. §§ 1-3, ch. 21679, 1943.

[ 4]


CHAPTER 17.

Comptroller.

§ 17.07 HISTORY.

Repealed by § 8, ch.' 22833, 1945; see §§ 215.30-215.36.

§ 17.26 HISTORY.

Comp. §§ 1, 2, ch. 22006, 1943.

§ 17.27 HISTORY.

Comp. § 1-3, ch. 23909, 1947.

CHAPTER 18.

Treasurer.

§ 18.04 HISTORY.

Repealed by § 1, ch. 23130, 1945.

§ 18.05 HISTORY.

Am. § 1, ch. 23094, 1945.

§ 18.08 HISTORY.

Am. § 1, ch. 23093, 1945.

§ 18.10 HISTORY.

Am. § 1, c:h.. 23976, 1947.

§ 18.11 HISTORY.

Am. § 1, ch. 23938, 1947.

§ 18.18 HISTORY.

Repealed by § 1, ch. 23113, 1945.

§ 18.20 HISTORY.

Comp. §§ 1, 2, ch. 22704, 1945.

CHAPTER 19.

Commissioner of Agriculture.

§ 19.23 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 19.28 HISTORY.

Am. § 1, ch. 24370, 1947.

§ 19.48 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 19.50 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 19.51 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 19.54 HISTORY.

Comp. § 1, ch. 22590, 1945.

CHAPTER 21.

State Auditing Department.

§ 21.08 HISTORY.

Am. § 1, ch. 22913, 1945.

§ 21.13 HISTORY.

Comp. § 1, ~h. 21920, 1943.

§ 21.14 HISTORY.

Comp. § 2, ch. 21920, 1943.

§ 21.15 HISTORY.

Comp. § 3, ch. 21920, 1943.

§ 21.16 ' HISTORY.

Comp. § 4, ch. 21920, 1943.

§ 21.17 HISTORY.

Comp. § 5, ch. 21920, 1943.

TITLE V.

JUDICIARY DEPARTMENT.

CHAPTER 25.

Supreme Court of Florida.


The supreme court has the power under this section to regulate its appellate procedure, and it doubtless had the inherent power to do so without statutory authorization. State v. Quigg, 154 Fla. 348, 17 So. <2d) 697.

In 1861, by chapter 1096, in 1868, by chapter 1626, and in 1873, by chapter 1938, now paragraphs one, two, three, four and five, of this section, the legislature vested in this court powers broader .tlhiaaJ. lbhooe vested by clhapter 21995 in 1943. Petition of Florida State Bar Ass'n. etc., 155 FLa .. 710, 21 So. (2d) 605. Generally rules must not contravene statute or

organic law.

[ 5 ]

§ 25.03-2 1947 CUMULATIVE SUPPLEMENT TO VOLUME ll, FLORIDA STATUTES, 1941

The Supreme Court is given power to make rules of practice or pleading in the courts of this State so long as such rules are not inconsistent with law. Cates v . Heffernan, 154 Fla. 422, 18 So. (2d) 11.

The rules have effect of statutes.-With reference to its appellate procedure the rules of the Supreme Court have the force and effect of statutes. Cates v . Heffernan, 154 Fla. 422, 18 So. (2d) 11 .

Court's duty to expand rules to meet new situations.-Rules for enforcing the law sliould be equal to the remedies provided by it. This section lays the burden on the supreme court of expanding them to meet that standard. Patten v. Daoud, 152 Fla. 448, 12 So. (2d) 299 , 300, (dis. op. of Terrell, J .)

This section makes it the duty of the supreme court to provide the rules, practice, and procedure to effectuate the guarantees of section four of the Declaration of Rights that everyone injured in person, property, or reputation, shall have a speedy remedy. Id.

Stated in Eristavitchitcherine v. Miami Beach Federal Sav., etc., 154 Fla. 100, 16 So. (2d) 730.

Cited in In re Rubin, 150 Fla. 783, 9 So. (2d) 190; Seaboard Rendering Co. v. Conlon, 151 Fla. 617, 10 So. (2d) 136.

Quoted in State v. Dade County Roofing CC' ., 156 Fla. 260, 22 So. (2d) 793. (Con. op.) .

§ 25.03-2 WSTORY.

Comp. § 2, ch. 23098, 1945.

. § 25.11 WSTORY.

Am. § 1, ch. 22691, 1945.

§ 25.12-1 WSTORY.

Comp. § 1, ch. 23645, 1947.

§ 25.12-2 IDS TORY.

Comp. § 2, ch. 23645, 1947.

§ 25.12-3 WSTORY.

Comp. § 3, ch. 23645, 1947.

§ 25.12-4 WSTORY.

Comp. § 4, ch. 23645, 1947.

WSTORY. § 25.12-5

Comp. § 5, ch. 23645, 1947.

§ 25.12-6 WSTORY.

Comp. § 6, ch. 23645, 1947.

§ 25.19 HISTORY.

Camp. §§ 1-5, ch. 22656, 1945. Am. § 7, ch. 24337, 1947.

§ 25.24 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 25.31 HISTORY.

Repealed § 6, ch. 24042, 1947.

§ 25.33 HISTORY.

Repealed § 6, ch. 24042, 1947.

§ 25.34 IDS TORY.

Repealed § 6, ch. 24042, 1947.

§ 25.35 HISTORY.

Repealed § 6, ch. 24042, 1947.

§ 25.47 HISTORY.

Camp. §§ 1-6, 21995, 1943.

§ 25.48 HISTORY.

Comp. § 1, ch. 24042, 1947.

§ 25.49 HISTORY .

Oomp. § 2, dh. 24042, 1947.

§ 25.50 HISTORY.

Comp. § 3, ch. 24042, 1947.

§ 25.51 HISTORY.

Camp. § 4, ch. 24042, 1947.

§ 25.52 HISTORY.

Camp. § 5, ch. 24042, 1947.

CHAPTER 26.

Circuit Courts, Circuits, Judges, etc.


A statute providing for an additional circuit judge operates to "create" the office of an additional circuit judge for such circuit, and consequently no member of the legislative body who enacts such statute is eligible for appointment to such office, until the term for . which he has been elected a member of the legislature shall have expired. Advisory Opinion to the Governor, 156 Fla. 55, 22 So. (2d) 458.

[ 6 ]

1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941 II 27.04

§ 26.02 HISTORY.

Am. § 1, ch. 22813, 1945.

§ 26.05-1 HISTORY.

Comp. §§ 1, 2, ch. 22618, 1945.

ANNOTATION. Cited in Winn, etc. Gro. Co. v. Luke, 156 Fla.

638, 24 So. (2d) 310.


Subsection 3 of this section is apparently in direct conflict with and repugnant to § 43 of Article V of the Florida Constitution. Advisory Opinion to the Governor, 156 Fla. 55, 22 So. (2d) 458, 460.

§ 26.07-1 HISTORY.

Comp. §§ 1-3, ch. 22943, 1945.

ANNOTATION. When the legislature enacted this section, it

operated to "create" the office of an additional circuit judge for such circuit. See Advisory Opinion to the Governor, 156 Fla. 55, 22 So. t2d) 458, treated under § 26.01.

§ 26.16 HISTORY.

Am. § 1, ch. 21637, 1943.

ANNOTATION. Cited in Sproul v. State, 153 Fla. 892, 16 So.

(2d) 109.

§ 26.17 HISTORY.

Am. § 2, ch. 22813, 1945.

§ 26.23 IllS TORY.

Am. § 7, ch. 22858, 1945.

ANNOTATION. Cited in In re Advisory Opinion to Governor,

153 Fla. 581, 15 So. (2d) 291.

§ 26.30 HISTORY.

Am. § 1, ch. 22056, 1943. Am. § 1, ch. 24165, 1947.

§ 26.33 HISTORY.

Am. § 1, ch. 21817, 1943.

§ 26.35 HISTORY.

Am. § 1, ch. 21901, 1943.

§ 26.51 HISTORY.

Am. §§ 1, 2, ch. 21760, 1943. Am. §§ 1, 2, ch. 22546, 1945.

ANNOTATION. Eligibility of member of legislature to offlee

of additional circuit judge.-No member of the 1945 legislature is eligible for appointment to the office of additional circuit judge for the sixth circuit created by that legislature during the time for which the member had been elected to the legislature, the emoluments of which newly created office were increased by the 1945 legislature through the enactment of this section. Advisory Opinion to the Governor, 156 Fla. 55, 22 So. (2d) 458.


Editor's note.-This section is in conflict with ~ 33.11. See Provident Life, etc., Ins. Co. v. Mathers, 157 Fla. 661, 26 So. (2d) 814, treated under §33.11.

Scope and operation of section.-This section was intended to apply only to the exercise of appellate jurisdiction in circuits having more than four judges. Provident Life, etc., Ins. Co. v Mathers, 157 Fla. 661, 26 So. (2d) 814.

Under this section, appellate jurisdiction in a circuit with more than four judges must be exercised by those judges sitting in divisions of three judges each, "inclusive of the presiding judge," and the court is empowered to adopt its own rules governing the "practice and procedure in the complete exercise of its appellate jurisdiction * * * ." Id.

Where mandate of supreme court to circuit court, in a case originally appealed to circuit court, sitting en bane, from civil court of record, went down before this section took effect, circuit court should have sat en bane and not in division in subsequent consideration of case. Goodkind v. Wolkowsky, 151 Fla. 62, 9 So. (2d) 553.

Stated in part in Winn, etc., Gro. Co. v. Luke, 156 Fla. 638, 24 So. (2d) 310.

CHAPTER 27.

State Attorney; Powers. Duties, Etc.

ANNOTATION. In general.-

§ 27.02

There is no reason under any circumstances at any time for a prosecuting officer to be rude to a person on trial. Daugherty v. State, 154 Fla. 308, 17 So. <2d) 290.

§ 27.04 HISTORY.

Am. § 1, ch. 22634, 1945.

ANNOTATION. This section is remedial in its nature.

[ 7]

§ 2'7.14 1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941

In accord with original, see Collier v. Baker, 155 Fla. 425, 20 So. (2d) 652. HISTORY.

§ 27.26

Scope in general.-It does not attempt to limit the power of the

state attorney to interrogate witnesses, except that the subject matter .of the interrogation be confined to the question of the violatiqn of any criminal law. Collier ·v. Baker, 155 Fla. 425, 20 So. <?M ~52.

After a grand jury has investigated a homicide and' has returned an indictment charging murder in the first degree, but before arraignment and· setting of the case for trial, the state attorney may use the process of the court to require persons .who did not testify before the grand jury and who are not under subpoena as "defense" witnesses, and who know something about the facts of the crime, to come before him before trial and submit to interrogation under oath concerning such facts. Id.

§ 27.14. ANNOTATION.

Cross reference.-As to governor's power to assign county solicitors to criminal court in another county, see Art. IV, § 6 of the Fla. Constitution.

§ 27.19 IDSTORY.

Am. § 1, ch. 24167, 1947.

§ 27.20 HISTORY.

Am. § 1, ch. 21843 and § 1, ch. 22132, 1943.

§ 27.22 IDSTORY.

Am. § 1, ch. 21695, 1943.

§ 27.23 IDS TORY.

Am. § 1, ch. 22069, 1943; subdivision (2) repealed by § 1, ch. 22069, .1943,

Am. § 1, ch. 23893, 1947.

ANNOTATION. Subsection (1) of this section is held to apply

in lieu of subsection .(2) which was repealed. In re Advisory Opinion to Governor, 153 Fla. 581, 15 So. (2d) 291.

Subsection (2) of this section was repealed by Chapter 22069, Acts 1943, although the body of the repealing act inadvertently, attempted to also repeal § 26.23(2), Flft. Stats., 1941. Id.

§ 27.23-1 HISTORY.

Comp. § 1, ch. 23640, 1947.

§ ·27.25 HISTORY.

§ 1, ch. 22188, 1943; Am. § 7, ch. 22585, 1945.

Am. § 2, ch. 23893, 1947.

§ 27.27 HISTORY.

Am. § 1, ch. 22069, 1943. Repealed § 3, ch. 23893, 1947.

ANNOTATION. This section is held to apply in lieu of § 27.28

which was repealed. In re Advisory Opinion to Governor, 153 Fla. 581, 15 So. (2d) 291.

§ 27.28 HISTORY.

Repealed by § 1, ch. 22069, 1943.

ANNOTATION. This section was repealed by Chapter 22069,

Acts 1943, although the body of the repealing act inadvertently attempted to also repeal § 26.23 (2), Fla. Stats., 1941. In re Advisory Opinion to Governor, 153 Fla. 581, 15 So. <2d) 291.

CHAPTER 28.

Clerk of the Circuit Court.

§ 28.06 HISTORY.

Am. § 1, ch. 21956, 1943.

ANNOTATION. As to authority of deputy clerk to accept

check in payment of tax certificates, see Penmsula Land Co. v. Howard, 149 Fla. 772, 6 So. (2d) 384, discussing this section, as worded prior to the 1943 amendment, in connliction therewith.

§ 28.18 HISTORY.

Am. § 1, ch. 21656, 1943.

§ 28.2f ANNOTATION.

I. GENERAL CONSIDERATION. The docket of subpoenas is subject to inspec

tion by counsel and may be of maierial value to him in the preparation of his case. Allen v. Powell, 150 Fla. 402, 7 So. (2d) 465.


Section in pari materia with §§ 59.21 to 59.26.-This section is in pari materia with §§ 59.21 to 59.26 providing that attorneys may prepare transcripts of record for use on appeal, to be compared, corrected, verified ana certified by the clerk of the court. In re Wade, 152 Fla. 546, 12 So. (2d) 449.

Clerk's compensation is of statutory creation.-· Prior to adoption of Chapter 11893, Acts of 1927

[ 8]

1947 CUMULATIVE SUPPLEMENT TO VOLUME ll, FLORIDA STATUTES, 1941 § 30.23

(from whence this section derives) the clerk of the circuit court received no compensation for attending court. State v. Fussell, 157 Fla. 55, 24 So. <2d) 804.

Section relates to ministerial functions.-This section relates to compensation for ministerial functions of the clerk of the court and not judicial functions. State v. Fussell, 157 Fla. 55, 24 So. (2d) 804.

§ 28.29 HISTORY.

Camp. § 1-3, ch. 23825, 1947.

CHAPTER 29.

Official Court Reporters.


Loss of notes .taken by private stenographer.As to effect on appeal, see Cleary Bros. Canst. Co. v. Phelps, 156 Fla. 461, 24 So. (2d) 51.

Stated in part in McAden v. State, 155 Fla. 523, 21 So. <2d) 33.


Quoted in part in Cleary Bros. Canst. Co. v. Phelps, 156 Fla. 461, 24 So. (2d) 51.

Stated in part in McAden v. State, 155 Fla. 523, 21 So. (2d) 33.


Stated in McAden v. State, 155 Fla. 523, 21 So. (2d) 33.

§ 29.04 HISTORY.

Am. § 1, ch. 22853, 1945.

ANNOTATION. Stated in McAden v. State, 155 Fla. 523, 21

So. (2d) 33.


Stated in part in McAden v. State, 155 Fla. 523, 21 So. <2d) 33.


Quoted in part in Cleary Bros. Canst. Co. v. Phelps, 156 Fla. 461, 24 So. (2d) 51.

CHAPTER 30.

Sheriffs.


Stated in part in Holland v. Mayes, 155 Fla. 129, 19 So. (2d) 709.


I. APPOINTMENT AND POWERS. Power deputy may exercise.

The law of Florida does not release a sheriff or his deputy from liability for wrongful acts merely because he is sheriff. It is generally held that the sheriff and his deputy are one and the same person and that the acts of the deputy may be imputed to the sheriff. Holland v. Mayes, 155 Fla. 129, 19 So. ~2d) 709.

The sheriff acts through his deputy, is charged with knowledge of his acts and consents to all acts done officially under color of his office. Id.

A sheriff is held to the same degree of responsibility for the negligent killing of one in the discharge of his official duty, as other citizens in their relations to the public are held. Id.

§ 30.08 HISTORY.

Am. § 1, ch. 22790, 1945.

§ 30.09 HISTORY.

Am. § 2, ch. 22790, 1945.

§ 30.12 HISTORY.

Am. § 3, ch. 22790, 1945.

§ 30.14 HISTORY.

Am. § 7, ch. 22858, 1945.


Stated in State v. Duckworth, 153 ~a. 739, 15 So. <2d) 668.

§ 30.16 HISTORY.

Transferred to § 30.15 by § 4, ch. 22790, 1945.

§ 30.18 HISTORY.

Am. § 5, ch. 2279(), , 1945.

§ 30.22 HISTORY.

Am. § 6, ch. 22790, 1945.

§ 30.23 HISTORY.

Am. § 1, ch. 22587, ' 1945. ·

ANNOTATION. Mileage for return of prisoner to county.-A

sheriff is authorized to charge mileage for the return of a prisoner to his county when he is arrested in another county. Traylor v. State, 151 FLa. 322', 9 So. (2dl) 417.

[ 9 ]

§ 30.25 1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941

§ 30.25 HISTORY.

Am. § 2, ch. 22587, 1945.

§ .30.29 HISTORY.

Comp. §§ 1-5, 7, ch. 21798, 1943.

ANNOTATION. Applied in Lewis v. Florida Power Co., 69 F.

Supp. 23.

§ 30.30 HISTORY.

Comp. §§ 1-6, ch. 22019, 1943.

ANNOTATION. Subsection (5) applied in Orr v. Allen

Hanford, 1,58 Fla. 34, 2·7 So. (2d) 823.

§ 30.31 HISTORY.

Comp. §§ 1, 2, ch. 22047, 1943.

§ 30.32 HISTORY.

Am. § 7, ch. 22790, 1945.

§ 30.33 HISTORY.

Am. § 8, ch. 22790, 1945.

§ 30.34 HISTORY.

Am. § 9, ch. 22790, 1945.

§ 30.35 HISTORY.

Am. § 19, ch. 22790, 1945.

CHAPTER 32.

Criminal Court of Record.

§ 32.01 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.02 HISTORY.

Am, § 1, c:h. 24107, 1947.

§ 32.03 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.04 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.05 HISTORY.

Am. § 1, cih. 24107, 1947.

ANNOTATION. Cited in Pollock v. Williams, 322 U. S. 4, 64 s.

Ct. 792, 88 L. Ed. 1095, 1103.

§ 32.06 HISTORY.

Am. § 1, ch. 23134, 1945. Am. § 1, ch. 24107, 1947.

ANNOTATION. Judge of court of record may be assigned to

criminal court of record.-The provisions of the Fla. Constitution <Art. IV, § 13) and statutes are sufficient to vest in the governor the power and authority to assign the judge of the court of record of Escambia county to serve as judge of any criminal court of record in the state of Florida as judge pro hac vice under like terms and conditions as would apply to the assignment of the judge of one criminal court of record to serve as judge of another criminal court of record. In re Advisory Opinion to Governor, 153 Fla. 344, 14 So. (2d) 663.

In general.-This section is patterned after and subject the same as Chapter 15613 Acts of 1931, which was held constitutional in Corrrack v. Coleman, 120 Fla. 1, 161 So. 844.

§ 32.07 HISTORY.

Subsections (1), (2) Am. § 1, ch. 24107; subsection (3) Comp. § 1, ch. 23703; subsection (4) Comp. § 1, ch. 23710 ; subsection (5) Comp. §§ 1, 2, ch. 23689, 1947.

§ 32.08 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.09 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.10 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.11 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.12 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.13 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.14 HISTORY.

Am. § 1, ch. 22612, 1945. Am. § 1, ch. 23720; § 1, ch. 24107, 1947.

[ 10]


§ 32.15 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.16 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.17 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.18 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.19 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.20 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.21 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.22 HISTORY.

Am. § 1, ch. 22728, 1945. Am. § 1, ch. 24107, 1947.

§ 32.23 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.24 HISTORY.

Am. § 1, 'Cih. 24107; §§ 1-3, ch. 23667, 1947.

§ 32.25 HISTORY.

Am. § 7, ch. 22858, 1945. Am. § 1, ch. 24107, 1947.

§ 32.26 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.27 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.28 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.29 HISTORY.

Am. § 1, ch. 24107, 1947.

§ 32.30 HISTORY.

Comp. § 1, clh. 24107, 1947.

§ 32.31 °

HISTORY. Comp. § 1, clh. 24107, 1947.

§ 32.32 HISTORY.

Comp. § 1, cih. 24107, 1947.

§ 32.33 . HISTORY.

Comp. § 1, clh. 24107, 1947.

§ 32.34 HISTORY.

Comp. § 1, cih. 24107, 1947.

CHAPTER 33.

Civil Court of Record.

§ 33.01 HISTORY.

Am. § 1, ch. 21819, 1943. Am. § 1, ch. 23668, 1947.

ANNOTATION. In general.-By the passage of Chapter 22854,

Acts of 1945, the legislature proposed to deal only with Chapters 58 and 67 and had no intention of revising any of the provisions of this chapter. F<mell v. Willilams, 157 Fla. 673, 26 So. (2d) 800.

Cited in Atlantic Coast LineR. Co. v. Gamble, 155 Fla. 678, 21 So. (2d) 348.


Cited in Pollock v. Williams, 322 U . S. 4, 64 Ct. 792, 88 L. Ed. 1095, 1103.


Editor's note.-This section and § 26.54 are said to be in hopeless conflict and cannot be reconciled. A comparison and review of the two sections will be found in Provident Life, etc., Ins. Co. v. Mathers, 157 Fla. 661, 26 So. (2d> 814.

Section is constitutional.-Cates v. Heffernan, 154 Fla. 422, 18 So. <2d) 11.

Even though chapter 20361 be disregarded on account of a defect in the title, this section is effective. Id.

The prescribed procedure must be followed.-The parties to a cause cannot by consent con

fer upon a court jurisdiction of the subject matter, and an appellate court does not acquire jurisdiction of the subject matter of an appeal unless such appeal is taken within the period required by law. Cates v. Heffernan, 154 Fla. 422, 18 So. (2d) 11.

[11]


Thus the order of a trial court judge extending the time within which an appeal may be instituted beyond the time fixed by statute is ineffectual. Id.

Number of judges is bnmaterial.-This section deals with appellate jurisdiction for circuit courts of counties where there are civil courts of record-regardless of the number of judges. Provident Life, etc., Ins. Go. v. Mathers, 157 F'lia. 661, 26 So. (2d) 814.

Time for taking appeal must be observed.-A particular time or period specifically prescribed for taking an appeal in any particular action must be observed in cases falling within the content and purview of such statute. Wiesen v. Schatzberg, 157 Fla. 375, 26 So. (2d) 62, wherein section was held not to apply.

Circuit court has no jurisdiction of appeal from judgment of civil court of record sued out forty-six days after entry of judgme1;1t. Fonell v. Williams, 157 Fla. 673, 26 So. (2d) 800.

Appeals to the circuit court from the civil court of record of Dade County should be entertained and determined as nearly as practicable as appeals are disposed of by the supreme court. Provident Life, etc., Ins. Co. v. Mathe::~ 157 Fla. 661, 26 So. (2d) 814.

Cited in Goodkind v. Wolkowsky, 151 Fla. 6·2, 9 So. (2d) 553; Winn, etc., Gro. Co. v. Luke, 156 Fla. 638, 24 Sro. (2d) 310.


This section does not expressly limit the use of writs of certiorari to a review of final judgments, and if it does so by implication, such limitation is confined to civil court of record cases. Kilgore v. Bird, 149 Fla. 570, 6 So. (2d) 541, 544.

Such writs originate in the circuit courts."Proceedings on writs of certiorari issued by the circuit courts are reviewable by the supreme court on writ of error or appeal as the law provides. Such writs of certiorari originate in the circuit courts." Kilgore v. Bird, ·149 Fla. 570, 6 So. (2d) 541, 545.

And have reference primarily to final judgments.-Writs of certiorari from the supreme court to civil courts of record are authorized, and have reference primarily to a review of final judgments of the circuit court on writs of error or appeals from final judgments of civil courts of record. Kilgore v. Bird, 149 Fla. 570, 6 So. (2d) 541.

But supreme court may use discretionary writ in other cases.-Even such statutory application of a writ of certiorari as stated in the preceding paragraph does not preclude the supreme court from using a discretionary writ of certiorari to r.eview proceedings in any lower courts under § 5, Art. V, of the Fla. Constitution when they have acted without authority or the essential requirements of law have been violated, causing material injury and no other adequate appellate review is afforded by law. Kilgore v. Bird, 149 Fla. 570, 6 So. (2d) 541.

"In cases originating in civil co'urts of record and reversed in appellate proceedings by the circuit courts, the general ruie is that the judgment of the circuit court should be a final judgment disposing of the cause on its merits. So if the judgment of reversal merely directs further proceedings, the circuit court judgments are generally not regarded as final judgments to which certiorari will be applied by the supreme court; but if in reversing and remanding a cause, the circuit court directs a proceeding to be had by the civil .court of record that is contrary to the essential requirements of the law, the supreme court may review such judgment on certiorari, even though it is not in form a final judgment. The essential considerations are whether the judgment, or the directions made a part of it, require an unauthorized proceeding or a departure from the essential requirements of the law and reasonably may cause substantial injury for which no. other adequate remedy is afforded by the law." Id.

§ 33.14 HISTORY.

Comp. §§ 1, 2, ch. 21868, 1943.

ANNOTATION. The statutory proceedings prescribed to con

trol in landlord and tenant actions by Chapter 83, Florida Statutes, 1941, by this section giving civil courts of record concurrent jurisdiction with county judges' courts in such matters were made applicable to such proceedings when instituted in the civil court of record. Wiesen v. Schatzberg, 157 Fla. 375, 26 So. (2d) 62.

HISTORY.

OHAPTER 31 County Courts.

§ 34.20

Am. § 1, ch. 24037, 1947.

CHAPTER 36.

County Judg:es: Court.

ANNOTATION. § 36,.01

As to minor's estate judge's jurisdiction is broad.-County judge has complete and broad supervisory powers over all matters pertaining to a minor's estate.- Randall v. Randall, 60 F. Supp. 308.

Cited in Pollock v. Williams, 322 U. S. 4, 64 S. Ct. 792, 88 L. Ed. 1095, 1103.

§ 36.04 HISTORY.

Am. § 1, ch. 22559, 1945.

§ 36.12 HISTORY.

Am. § 7, ch. 22858, 1945.

[ 12 ]

1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA •STATUTES, 1941 § 38.10

§ 36.17 - \

HISTORY. Am. § 1, ch. 21960, 1943.

ANNqTATION. , , - This section related to compensation for ministerial functions of the county judge and not judicial functiQns and the service of , presiding over the court of which he is judge for discharging judicial functions is not similar service to that of the clerk of the court who attends the . circuit court for the discharge of clerical and ministerial functions. State v. Fussell, 157 ~la. 55, 24 So. (2d) 804.

CHAPTER 37.

Justice of .the Peace Courts. (.


Stated in State v. Duckworth, 153 Fla. 739, 15 So. (2d) 668. ·


The provisions of this section simply grant or confer on a justice of the peace .the power or authority to function and dispatch pending business without unnecessary delays, postponements, or adjournments because or' the absence of the sheriff or constable to act oi discharge the duties of the executive officer of the court. State v. Duckworth, 153 Fla. 739, 15 So. (2d) 668, 670. .

In mandamus proceeding to command ju.stice of peace to permit · or allow constable to act as executive officer of the justice court, evidence failed to disclose that justice denied constable the right to act as executive officer. Id.


Stated, in part, in State v. Duckworth, 153 Fla. 739, 15 So. (2d) 668.

§ 3.7.20 HISTORY.

Am. § 1, ch. 22587, 1945. .c

ANNOTATION. Stated in State v. Duckworth, 153 Fla. 739, 15

So. (2d) 668.

§ 37.24 HISTORY.

Comp. §§ 1-6, ch. 22118, 1943.

CHAPTER 38.

Judges.

§ 38.01 ANNOTATION. 'I

Citeil in Ball v. Yates, 158 Fla. 521, 29 So. (2d) 729.


II. GROUNDS FOR DISQUALIF1CATION. Fee dependent upon conviction.-The fact

that a municipal judge receives as his sole compensation a fee of only one dollar upon conviction of defendants found guilty of violating municipal ordinances, where he receives no fee in the event of acquittal of such defendants, amounts to such an interest , in the outcome of the case as to constitute a disqualification. Rollo v. Wiggins, 149 Fla. 264, 5 So. (2d) 458, 460.

III. PROCEDURE. Sufficiency of suggestion.

"The bald statement that a judge is disqualified because he is a material witness in the cause is not sufficient. It must be· stated in what the disqualification consists and when stated it becomes the duty of the trial judge to pass on its sufficiency." State v. Sandler, 152 Fla. 517, 12 So. (2d) 298, 299.

Suggestion held insufficient in··Ball v. Yates, 158 FLa. 521, 29 So. (2d) 729.

Disqualification considered as waived. The sole basis for disqualifying a trial judge

was that he had received a certain letter almost three months before the notice of disqualifica.tion was filed, and it did not affirmatively appear why it was not filed sooner. It was held that for this tftlreasonable delay and the fact that the cause was in progress, the objection was too late and to all intents and purposes waived. State v. Sandler, 152 Fla. 517, 12 So. 298.

Suggestions of disqualifications shall btl filed before the trial and before decisions are rendered and not afterwrurdl unless the delay is excu.sed by good cause shown. Ball v. Yates, 158 Fla. 521, 29 So. (2d) 729. · ·

§ 38.04 ANNOTA'l;'ION.

Applied in Ball v. Ya;tes, 158 Fla. 521, 29 So. (2d) 729 . .

§ 38.05 · ANNOTATION.

When no disqualification is shown, -the matter of voluntary recusation is not for the court to decide, but in each instance for the individual judge or justice to determine according to the circumstances .. Ball v. Yates, 158 Fla. 521, 29 So. (2d) 7.29.

• ' §, 38.f0 ANNOTATION. Sufficiency of affidavit.

The euggestion of disqualification of the trial court because of alleged prejudice was in conformity with this section. Murray v. State, 154 Fla. 683, 18 So. '(2d) 782.

r 13 J


Cited in State v. Milledge, 157 Fla. 146, 25 So. (2d) 195 (dis. op.); Ball v. Yates, 158 Fla. 521, 29 So. (2d) 729.

§ 38.13 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 38.14 HISTORY.

Am. § 7, ch. 22000, 1943.

ANNOTATION. Cited in State v. Miami, 153 Fla. 644, 15 So.

(2d) 449.

§ 38.15 HISTORY.

Am. § 7, ch. 22000, 1943.

§ 38.22 HISTORY.

Am. § 1, ch. 23004, 1945.

ANNOTATION. Courts have the inherent power to punish for

contempt but such power has been conferred by this section. State v. Sullivan, 157 Fla. 496, 26 So. (2d) 509.

Prosecution of contempts.-Criminal contempts are to be dealt with and tried in a manner analogous to criminal proceedings. State v. Sullivan, 157 Fla. 496, 26 So. (2d' 509.

But judicial wisdom and the experiences of the past would seem to demand that the extraordinary powers given by this section be not used except to prevent actual and direct obstruction or interference with the administration of justice. Id.

Due process of law, in the prosecution of contempt, except that committed in open court and in the presence of the trial judge, requires that the accused should be advised of the charge and be given a reasonable opportunity to meet it by way of defense or explanation. This includes the assistance of counsel, if requested, and the right to call witnesses to give testimony relevant to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty imposed. Id.

Quoted in Pennekamp v. State, 156 Fla. 227,

Florida, 328 U. S. 331, 66 S. Ct. 1035, 90 L. Ed. 1295 <con. op.).

Distinction between contempts in court and those outside.-The Supreme Court recognizes the distinction between contempts committed outside of and those committed within its presence, and between civil and criminal contempts. Penekamp v. State, 156 Fla. 227, 22 So. (2d) 875.

Indelicate language in pleadings.-The filing of papers, which are gross and indelicate in language, the use of scandalous language in a brief, or the making of statements therein charging the court with improper motives in rendering a certain line of decisions, may constitute contempt. State v. Sullivan, 157 Fla. 496, 26 So. (2d) 509.

Any publication tending to intimidate, influence, impede, embarrass or obstruct courts in the due administration of justice in matters pending before them constitutes contempt. State v. Sullivan, 157 Fla. 496, 26 So. (2d) 509.

And this rule applies to any publication which has a tendency to prejudice or prevent fair and impartial action in a case under judicial investigation or by reflecting on the court, counsel, parties or witnesses respecting the cause. Id.

This section is more liberal than the general rule that publications about a case that is closed no matter how scandalous, are not punishable ·as contempt. Pennekamp v. Florida, 328 U. s. 331, 66 S. Ct. 1035, 90 L. Ed. 1295.

Disqualification of judge.-The statutory reasons disqualifying a judge to sit in a cause do not necessarily apply in contempt cases-punishment for contempt is not for a cause personal to the court. Pennekamp v. State, 156 Fla. 227, 22 So. <2d) 875.

CHAPTER 39.

Attorneys at Law.

§ 39.06 HISTORY.

Am. § 1, ch. 21963, 1943.

§ 39.07 HISTORY.

Am. § 2, ch. 21963, 1943.

§ 39.11 22 So. (2d) 875. HISTORY.

§ 38.23 ANNOTATION. History of contempt proceedings.-See Pennekamp v. State, 156 Fla. 227, 22 So. (2d) 875.

The main purpose of contempt under state law is to afford the court a means to enforce decorum and punish wilful disregard of orderly judicial administration. Pennekamp v. State, 156 Fla. 227, 22 So. (2d) 875.

The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise. Pennekamp v.

Am. § 7, ch. 22858, 1945.

§ 39.24 ANNOTATION. There is no statutory authority, etc.

The only requirement of the statute is that the motion to disbar be in writing and in the name of the state. No particular form of verification is required, and it does not have to be under oath. Lambdin v. State, 150 Fla: 814, 9 So. (2d> 192.

Sufficiency of charges of unprofessional conduct.-Charges of unprofessional conduct based

[ 14]


on one or more of the provisions of this section will be sufficient, if expressed in alear and unambiguous terms. It is not essential that the certitude required in drawing an indictment to charge a crime be observed. Lambdin v. State, 150 Fla. 814, 9 So. (2d) 192.

Judgment of disbarment held proper. Lambdin v. State, 150 Fla. 814, 9 So. (2d) 192, 195.

Costs.-The rule seems to be that there must be some statutory authority for costs, and there is none for the taxation of costs against the losing defendant in a disbarment proceeding. Lambdin v. State, 150 Fla. 814, 9 So. (2d) 192, 195.

Applied, as to judgment of disbarment, in In re Stoller, 154 Fla. 864, 19 So. (2d> 312, wherein the findings of fact of the trial court were supported by the weight of evidence, and not disturbed by the Supreme Court on appeal.

Cited in petition of Stalnaker, 150 Fla. 853, 9 So. (2d) 100 (dis. op.)

Applied in State v. Kehoe, 158 Fla. 40·, 27 So. (2d) 517.

§ 39.26 ANNOTATION. Sufficiency of evidence.-

Where an attorney was found guilty of unprofessional conduct in relation to his connection with an alleged divorce mill, of securing a signature to a certain deed by a party who was out of the State at the time, of concealing assets in order to defeat an execution, of making certain bankruptcy papers and collecting a fee therefor which he did not report and making an application for homestead exemption which was not bona fide, the evidence amply supported an order of disbarment. In re Stoller, 154 Fla. 864, 19 So. (2d) 312.


Cited in State v. ~ehoe, 158 Fla. 40, 27 So. (2d) 517.

§ 39.34 HISTORY.

Comp. § 1, ch. 22885, 1945.

§ 39.35 HISTORY.

Oomp. § 1, ch. 23816, 1947.

§ 39.36 HISTORY.

Comp. § 1, ch. 24298, 1947.

CHAPTER 40.

Jurors and Jury Lists.


When a. jury list is received by clerk of circuit court from jury commission. it is duty of cl&k

and oth&s to comply with §40.06 tJhe same as if jury list was received from county commissioners. Mattox v. State, 158 Fla. 512, 29 So. (2d.) 303.

§ 40.03 HISTORY.

Am. § 1, ch. 21740, 1943.

§ 40.05 HISTORY.

Am. § 7, ch. 22858, 1945.


Duty of clerk when list received from jury commission.-It is the duty of the clerk of the court andi others to comply with this section when jury list is received from jury commission, the same as if received from county commission~s under §40.02. Mattox v. State, 158 Fla. 512, 29 So. (2d) 303.


I. GENERALLY.

Error must have precluded entry of judgment.-Under subsection (2) ·of this section, the writ

of error coram nobis is not available unless the error claimed would have precluded the entry of a judgment .against the petitioner. It is not enough to say that the error would compel the reversal of the judgment for another trial. Sullivan v. State, 15.4 Fla. 496, 18 So. <2d) 163.

II. OFFICIAL POSITION.

Prohibiting sheriffs and deputies, etc. Under ,the facts in the instant case, where one

of the jurors was in fact a deputy sheriff, the verdict and judgment were not void. Ex parte Sullivan, 155 Fla. 111, 19 So. (2d) 611.

§ 40.09 ANNOTAT~ON. . Constitutionality upheld.

Chapter 16058, Acts 1933, codified as §§ 40.09-40.13, has been sustained against numerous attacks made thereon. Baker v. State, 150 Fla. 446, 7 So. (2d) 792, 794.

§ 40.14 HISTORY.

Repealed by § 9, ch. 21973, 1943; see §§ 40.36, 40.38 and 40.39.

ANNOTATION. Plea in abatement.-If irregularities that may

render an indictment illegal or void exist in the drawing or the impaneling of a grand jury returning or presenting an indictment, the approved practice is the presentation to the court for adjudication of the alleged irregularities or defects by plea in abatement. Baker v. State, 150 Fla. 446, 7 So. (2d) 792,. 794.

[ 15 ]


§ 40.15 HISTORY.

Repealed by § 9, ch. 21973, 1943; see §§ 40.37, 40.38 and 40.39.

§ 40.16 HISTORY.

Repealed by § 9, ch. 21973, 1943; see § 40.41.

§ 40.17 HISTORY.


§ 40.18 HISTORY.

Repealed by § 9, ch. 21973, 1943.

§ •40.19 HISTORY.



The legislature has deliberately and by clear language provided that when the names in the box shall become exhausted during term of the court and it appears additional jurors will be required for the trial of a cause at that term of court a sufficient venire may be ordered summoned from the body of the county to complete a panel of jurors for trial of such cause and this may be done under the provisions of this section whether or not there are some jurors (but not enough in trial judge's opi.JK(m to complete a paneD whose names were theretofore drawn from the box then in attendance and available to be called on the panel. Bailey v. State, 155 Fla. 597, 21 So. (2d) 217.

Scope and nature of section.-The language of this section authorizes the

trial judge to exercise his discretion and order a sufficient number of veniremen summoned from the body of the county <not to procure just a part of a paneD to complete a panel for the trial of such cause. Bailey v. State, 155 Fla. 597, 21 So. (2d) 217.

There is nothing contained in this section which requires the circuit judge to wait until the trial of a cause shall have commenced before he shall be authorized to proceed under the provisions of this section. Id.

In the dissenting opinion, it was held that this section of the statute limited its applicability to the completion of "the panel for the trial of the cause," and was not intended to be used for the formation of an entirely new panel, and that this section confers authority to summon only upon the sheriff. Id

The jury must be obtained in the manner prescribed by statute unless the accused waives compliance with the legislative· requirements. Bailey v. State, 155 Fla. 597, 21 So. (2d) 217.

§ 40.21 HISTORY.



The act of selecting and preparing a jury list from those persons in the county whose qualifications for jury duty are prescribed by general law is an entirely different thing than summoning and impaneling a grand or petit jury, even though it may possibly bear some relation to the latter. State v. Pearson, 153 Fla. 314, 14 So. (2d) 565, 567, holding valid a special act applicable in Sarasota county.

§ 40.23 HISTORY.

Am .. § 1, ch. 22766, 1945.

ANNOTATION. Cited in State v. Pearson, 153 Fla. 314, 14 So.

(2d) 565, 567. .

§ 40.24 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 40.35 HISTORY.

Am. § 7, ch. 22858, 1945.

. § 40.36 HISTORY.

Comp. § 1, ch. 21973, 1943.

§ 40.37 HISTORY.

Comp. § 2, ch. 21973, 1943.

§ 40.38 HISTORY.

Comp. § 3, ch. 21973, 1943.

§ 40.39 HISTORY.

Comp. § 4, ch. 21973, 1943.

§ ·40.40 HISTORY.

Comp. § 5, ch. 21973, 1943. ·

§ 40.41 HISTORY.

Comp. § 6, ch. 21973, 1943.

§ 40.42 HISTORY.

Comp. § 7, ch. 21973, 1943.

§ 40.43 HISTORY.

Comp. § 8, ch. 21973, 1943.

[ 16]


CHAPTER 41.

Jurors and Jury Lists for Certain County Judges' Courts.

§ 41.03 HISTORY.

Am. § 1, ch. 21898, 1943. Am. § 1, ch. 23818, 1947.

§ 41.05 HISTORY.

Am. § 2, c'h. 23818, 1947.

CHAPTER 43.

Provisions Relating to Courts Generally.

§ 43.01 HISTORY.

Am. §§ 1, 2, 5, ch. 22108, 1943.

§ 43.02 HISTORY.

Comp. §§ 1-5, ch. 21668, 1943. Am. §§ 1-6, oh. 23769, 1947.

§ 43.03 HISTORY.

Comp. § 1, ch. 21681, 1943.

§ 43.04 HISTORY.

Comp. §§ 1-5, ch. 21770, 1943.

§ 43.05 HISTORY.

Comp. § 1, ch. 23768, 1947.

§ 43.06 HISTORY.

Comp. § 2, ch. 23768, 1947.

§ 43.07 HISTORY.

Comp. § 3, ch. 23768, 1947.

§ 43.08 HISTORY.

Comp. § 4, ch. 23768, 1947.

§ 43.09 HISTORY.

Oomp. § 5, ch. 23768, 1947.

§ 43.10 HISTORY.

Comp. § 7, ch. 23768, 1947.

TITLE VI.

CIVIL PRACTICE AND PROCEDURE.

CHAPTER 45.

Parties and Abatement.


I. Generally.

Applied in Haverty Furniture Co. v. McKesson & Robbins, 154 Fla. 772, 19 So. (2d) 59.

Cited in Haddock v. Florida Motor Lines Corp., 150 Fla. 848, 9 So. <2d) 98.

§ 45.02 HISTORY.

Am. § 1, ch. 22720, 1945.

§ 45.11 ANNOTATION. All actions except those enumerated survive, etc.

In accord with original, see Haverty Furniture Co. v. McKesson & Robbins, 154 Fla. 772, 19 So. (2d) 59; Ake v. Birnbaum, 156 Fla. 735, 25 So. (2d) 213.

This section deals with the abatement by death of actions pending for damages suffered by the plaintiff, and does not authorize the commencement of a suit by the personal representative of the injured person in the first instance. Haverty Furniture Co. v. McKesson & Robbins, 154 Fla. 772, 19 So. (2d) 59.

Section deals only with abatement of actions pending.-It is apparent that the legislature intended this section to deal with abatement of actions pending for damages suffered by a plaintiff. In re Moore's Estate, 153 Fla. 480, 15 So. (2d) 55, 56.

It does not authorize a suit to be commenced by an administratrix in the first instance where no action for personal injuries has been brought by the deceased. In re Moore's Estate, 153 Fla. 480, 15 So. <2d) 55, 56.

Pendency of suit at time of death.-Except as to those torts which this section provides shall die with the person, full redress for the wrong done the injured person may be obtained by the personal representative, in those cases where the injured person has not pursued his cause of' action to final judgment; and this without regard to whether suit is or is not pending on the cause of action at the time of the injured person's decease. Ake v. Birnbaum, 156 Fla. 735, 25 So. (2d) 213, expressly overruling anything to the contrary in In Re Moore's Estate, 153 Fla. 480, 15 So. (2d) 55.

On rehearing in Ake v. Birnbaum, 156 Fla. 735, 25 So. <2d) 213, the Supreme Court said, "We find nothing in the statute to disclose an intention on the part of the legislature to limit the application of the statute only to cases pending at the time of the death of the injured person."

r 17 1


Death need not be due to negligence of tortfeasor.-The cause of action of the decedent survives to the personal representative regardless of whether the death of the decedent is due to the injuries inflicted or arises from a cause wholly unconnected with the negligent conduct of the tort-feasor. Ake v. Birnbaum, 156 Fla. 735, 25 So. (2d) 213.

Cited in Red Top Cab & Baggage Co. v. Dorner, <Fla.), 31 So. (2d.) 409.


Personal representative is substituted as party plaintiff.-Where the injured person dies during the pendency of a suit instituted by him against such tort-feasor or his personal representative, the personal representative of the decedent may be substituted as party plaintiff to maintain the suit, thus saving the case then pending from becoming abated. Ake v. Birnbaum, 156 Fla. 735, 25 So. (2d) 213 <on rehearing).

§ 45.19 HISTORY.

Am. §§ 1-2, ch. 23965, 1947.

ANNOTATION. Former equity rule one.-This section super

cedes old equity rule one ·and, if anything, is more exacting than was the rule. Moore v. Fletcher, <Fla.), 32 So. (2d) 12. Action taken on the last day of the three year

period is timely. In Scarlett v. Frederick, 147 Fla. 407, 3 So.

(2d) 165, construing this section, the court recognized the rule that in computing the time fcir which a condition shall exist before a person may take advantage of it, the first day is excluded and the last day included. The practical effect is, however, that the period must actually intervene between the day of the act charged and the day that the advantage may be taken, because the period does not mature until midnight of the last day. Young v. Young, 152 Fla. 712, 12 So. (2d) 885, 886. Right to file amended bill.-

The lapse of more than three years in which case lay dormant did not abate the case, in the absence of a motion to dismiss, and the court had authority to grant a motion to file an amended bill, or an amendment to the bill. Dudemaine v. Shaw, 153 Fla. 899, 16 So. (2d) 114.

Applied in Lockhart v. Dade County, 157 Fla. 281, 25 So. (2d) 646.

CHAPTER 46.

Venue, Joinder, E.tc., of Actions.


I. GENERAL CONSIDERATION.

Limitation upon the common law.

This section imposes a limitation on the common law right to bring an action in any county where the defendant can be found. State v. Barrs, 152 Fla. 631, 12 So. (2d) 576. Nonresidents.

The last sentence of this section has the effect of removing nonresidents from its scope. It is competent for the legislature to do so and it imposes no undue hardship on the nonresident. State v. Barrs, 152 Fla. 631, 12 So. (2d l 576, 577.

Applied in Krivitsky v. Nye, 155 Fla. 45, 19 So. (2d) 563.

II. WHERE CAUSE OF ACTION ACCRUED. Nonresident.-Under this section a nonresi

dent cannot claim the privilege of being sued in the county where the cause of action accrued. State v. Barrs, 152 Fla. 631, 12 So. (2d) 576, 577.

Dicta in Payne v. Ivey, 83 Fla. 436, 93 So. 143, leaves the impression that a nonresident may claim the privilege to be sued in the county where the cause of action accrued but in that case the nonresident had a property interest in that county and had a basis for his contention. I d .

Where goods sold.-For the purposes of venue, cause of action for

breach of sales contract or of warranty accrues where order for goods is sold generally is accepted. Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So. (2d) 313.

In an action for damages by a consumer of canned food products alleged to have been made ill because the product was unfit for human consumption, the plaintiff had an option to sue foreign corporation in the county where the product was purchased from the retailer and consumed, or in another county where the retailer's order for the product was accepted by the canner's office and where the agent of the canner was served with process. The trial court erred in sustaining the plea of privilege of the defendant to be sued in the first county. I d.

VI. VENUE OF PARTICULAR ACTIONS. Appeals from an award by industrial com

mission.-As the Workmen's Compensation Act is silent as to the venue of circuit courts having jurisdiction of appeals (original jurisdiction) involving awards by industrial commission where the injury occurred outside the state, the supreme court may look to the general statutes governing venue applicable in suits on contract to determine whether or not the circuit court had jurisdiction of the justifiable issue. Stansell v. Marlin, 153 Fla. 421, 14 So. (2d) 892, 895.


See annotation to § 46.01.


Where part of the claim was embraced in a promissory note that was given to cover a por-

[ 18]


tion of ran operu 181CC0unt, irt did/ not relieve the obligation and this being the case, this section has no application. Producers Supply v. Harz, 149 Fla. 594, 6 So. (2d) 375, 376.


Applied in Wilson Cypress Co. v. Miller, 157 Fla. 459, 26 So. (2d) 441.


Cited in Gill v. Rhomberg, 152 Fla. 262, 11

CHAPTER 47.

Commencement of Suits at Law and Process.


Cited in Petition of Florida State Bar Ass'n, etc., 155 FLa. 710, 21 S.o. (2d) 605, 610.


Justice's discretion to allow sheriff or constable to serve process.-See § 81.02.

§ 47.13 So. (2d) 79.5. ANNOTATION.


Cited in Gill v. Rhomberg, 152 Fla. 262, 11 So .. (2d> 795; Petition of Florida State Bar A:ss'n, eto., 155 Fla. 710, 2,1 So. (2d) 605, 611.

§ 46.09 HISTORY.

Am. § 1, ch. 21886, 1943.

ANNOTATION. Separate suit by husband prior to amendment.

-As to separate suit by husband for personal injuries and property damage suffered by him, prior to the 1943 amendment, see Gaynon v. Statum, 151 Fla. 793, 10 So. (2d) 43.2.

The claimants, husband and wife, under this section, may join in bringing one suit, or they may bring separate suits which may be consolidated· for trial. Rose v. Frederick, (Fl·a.) 31 So. (2d.) 401.

Sections 708.08-7()18.10 have no effect on the iPI'OVisions of this section. Rose v. Predericlt, (Fla.>, 31 So. (2d) 401.

Cited in Bernhart v. Peebles, 153 Fla. 431, 14 So. (2d> 722 (dis. op.).


Suit by wife to foreclose Iien.--See Williams v. Smith, 149 Fla. 735, 6 So. (2d) 853, discussing· effect of nonjoinder of husband.

§ 46.12 HISTORY.

Comp, § 1, ch. 21966, 1943.

ANNOTATION. The animus necessary to establish a change

of domicile must still be proved but a plaintiff is aided by the provisions of this section. Mills v. Mills, 153 Fla. 746, 15 So. (2d> 763, 764, holding that chancellor erred in dismissing bill for divorce for want of jurisdiction.

Held not to apply in Calvert v. Calvert, 156 Fla. 116, 22 So. (2d) 643.

'11he purpose of constructive or substituted service is to bring knowledge of the pending litigation to the defendant in order that he may appea;r and guaro his interest, and the fact of leaving it •at the pl•a.ce at l"esidence with some person over fifteen years of age contemplates that it will be brought to the attention of the defendant by that person. Clark v. Claa-k, 158 Fla. 731, 30 So. (2d) 170.

And if means are available for defendant to secure the servtce when left with a member of tale family, the oomt will presume that it was brought to the attentiOill of defendant but not so when it is conclusively shoW'lll that it could not have been done. Clark v. Cllark, 158 FLa. 731, 30 So. (2d) 170.

Applied in Coffee v. United States, 157 F . (2d) 968.

·' § 47.26 HISTORY.

Am. § 1, ch. 21992, 1943.

§ 47.28 HISTORY.

Am. § 7, . ch. 24337, 1947.


This section rests upon the principle of agency and applies only where the defendant is a nonresident. It is indispensible that the record show the nonresident status at the time the cause of action accrues. Red Top Cab, etc., Co. v. Holt, 154 Fla. 77, 16 So. (2d) 649.

§ 47.38 HISTORY.

Repealed by § 6, ch. 22000, 1943; see ch. 48.

§ 47.39 HISTORY.


§ 47.40 HISTORY.


§ 47.44 HISTORY.

Am. § 7, ch, 22858, 1945.

[ 19]


§ 47.49 IDSTORY.

Am. § 1, c.h. 24336, 1947.

ANNOTATION.

I. GENERAL CONSIDERATION. It applies to any property.

Under this section lis pendens is applicable to "any property involved" in the suit, when properly recorded in the county where the property is situated. Riesen v. Maryland Cas. Co., 153 Fla. 205, 14 So. <2d) 197, 198.

§ 47.51 HISTORY.

Comp. § 1, ch. 22074, 1943.

CHAPTER 48.

Constructive Service of Process.


The purpose of the substi~uted service act, etc. In accord with 2nd paragraph in original.

See Seiton v. Miami Roofing, etc., Metal, 151 Fla. 631, 10 So. (2d) 428, 429.

Strictly construed.--Statutes authorizing constructive service of process by publication must be strictly construed and fully complied with in order to give a court jurisdiction of the person of the defendant. United Brotherhood of Carpenters, etc. v. Graves Inv. Co., 153 Fla. 529, 15 So. <2d) 196, 197.

The general rule is that statutes authorizing service of judicial process by publication are to be construed with reasonable strictness. Gribbel v. Henderson, 151 Fla. 712, 10 So. <2d) 734, 741. The constructive service statute must be strictly

no effort was made to perfect service at the time, an attempt could not be made under the statute after a period of seven years. Id.

And is not applicable to collection of personal claim.-There is nothing in the constructive service statute to show that it was intended to be employed to bring a defendant into court for the mere purpose of collecting a personal claim. Ake v. Chancey, 152 Fla. 677, 13 So. <2d) 6, 9.

Service by publication on director-trustee defendants.-The provisions of the last paragraph of this section are sufficiently definite and comprehensive to include authority ·for service of process by publication on the persons who are director-trustee defendants. Gribbel v. Henderson, 151 Fla. 712, 10 So. (2d) 734, 741.

Proceedings seeking modification of alimony. -As to service of notice by publication in proceedings seeking modification of alimony decree under § 65.15, see Cohn v. Cohn, 151 Fla. 5'47, 10 So. (2d) 77, 143 A. L. R. 428.

As to prior similar law see Cone v. Benjamin, 157 Fla. 800, 27 So. (2d) 90.

Stated in part in Fowler v. Fowler, 156 Fla. 316, 22 So. (2d) 817.

Cited in McGee v. McGee, 156 Fla. 346, 22 So. (2d) 788.

§ 48.02 HISTORY.

Am. § 7, ch. 22858, 1945.

ANNOTATION. Cited in Gribbel v. Henderson, 151 Fla. 712,

10 So. (2d) 734; Fowler v. Fowler, 156 Fla. 316, 22 So. (2d1) St17;' McGee v. McGee, 156 Fla. 346, 22 So. (2d) 7i8t8.

§ 48.03 complied with, etc. , ANNOTATION.

"Statutes authorizing constructive service of process must be strictly and exactly pursued in order to give the court jurisdiction to render a judgment by default. If there i!? . a failure to pursue the essential requirements of the· statute, a decree rendered upon constructive service is void as to parties who have not appeared or pleaded in the cause." United Brotherhood of Carpenters, etc. v. Graves Inv. Co., 153 Fla. 529, 15 So. (2d) 196, 197. And special appearance ~ not general appearance. , .

See Ake v. Chancey, 152 Fla. 677, 13 So. (2d) 6, 8.

Section only covers causes arisbtg subsequent to its effective date.-The constructive service statute was intended to cover those causes arising or commenced subsequent to its effective date and any cause instituted prior thereto must be continued under the law in force at the time. Ake v. Chancey, 152 Fla. 677, 13 So. (2d) 6, 9.

Where a suit was instituted before the constructive service statute became effective, and

The purpose of this section is to give reasonably sufficient notice of the suit or action that is fair to defendants and satisfies the due process of law commands of· ,the state and Federal constitutions. Reasonable opportunity to be heard must also be afforded in due course of proce::. dure. Gribbel v. Henderson, 151 Fla. 712, 10 So. (2d) 734, 741.

And substantial compliance with it accomplishes such purposes.-A substantial compliance with the essential requirements of this section is all that may be necessary to accomplish its purpose. Gribbel v. Henderson, 151 Fla. 712, 10 So. (2d) 734, 741. · ·

Where the names and addresses of five nonresident defendant persons were known and sufficiently shown by the record it was held that there was a substantial compliance with the intent of this section. Id.

Matters to be included in sworn statement.This section does not require matters to be included in the · sworn statements for publication of process when such matters are not essential

[ 20 j

1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FL&ltiDA STATUTES, 1941 § 4'!U7

to show a right •to service by publication, or when essential matters are otherwise su1Iiciently shown by sworn parts of the record in the cause. This is not unfair to the defendants, and satisfies due process of law. But in each case it must appear that no essential requirement of this section is wholly omitted from the sworn parts of the record considered as an entirety. Gribbel v. Henderson, 151 Fla. 712, 10 So. (2d) 734, 741.

What are the essential matters, within the contemplation of this section, is to be determined as a question of law, making it imperative that care be taken in omitting or including any of the enumerated statutory matters. Id.

The better practice is to include in the sworn statements in the record all the matters required by this section that are applicable and required in ·that · class of cases, even if it may cause some dupiications of statements or soine apparent but immaterial conflicts of statements. I d.

The record of the cause is meant the initial pleadings filed prior to the issuance of the order of publication, not testimony taken thereafter on decree pro confesso. McGee v. McGee, 156 Fla. 346, 22 So. (2d) 788.


Service upon director-trustees of dissolved corporation.-This and the next section necessarily contemplate that service of process may be upon the director-trustees of a dissolved Florida corporation if there are any when the affairs of the dissolved corporation are to ·be litigated. Gribbel v. Henderson, 151 Fla. 712, 10 ,So. (2d) 734, 737.

Where names and addresses of the nonresident director-trustees of a dissolved Florida corporation were stated under oath and it was also stated under oath that there was no one in the state on whom service of process might be made that would be binding , on the dissolved corporation, it was . held that such allegations taken with the entire sworn .bill of complaint with exhibits · and sworn statement for process by publication were legally su1Iicient to authorize the service of process as ·made by publication under this and the following section. Id.

that his age be alleged as required by subsection (2) becomes unnecessary and immaterial. Eckersley v. Eckersley, 157 Fla. 722, 26 So. (2d) 811.

Diligent search need not be shown where defendant resides outside state.-Under this section, where a sworn bill of complaint sets forth the name of defendant and his address in another state, it is unnecessary to allege that diligent search and inquiry to discover the name and residence of defendant had been made. Eckersley v. Eckersley, 157 Fla. 722, 26 So. (2d) 811. .

Quoted in part in McGee v. McGee, 156 Fla. 346, 22 So. (2d) 788.

Cited in Krajci v. Krajci, 157 Fla. 205, 25 So. (2d) 380; Lucian v. Southern Ohio Sav. Bank, etc., Co., 156 Fla. 370, 23 So. (2d) 674.


Applied in United Brotherhood of Carpenters, etc. v. Graves Inv. Co., 153 Fla. 529, 15 So. <2d) 196.


As to prior similar law, see Cone v. Benjamin, 157 Fla. 800, 27 So. (2d) 90. ·


As to prior similar law, see Cone v. Benjamin, 157 Fla. 800, 27 So. (2d) 90.


Stated in p~rt in McGee v. McGee, 156 Fla. 346, 22 So, <2d) 788.

§ 48.14 HISTORY.

Am. § 1, ch. 21791, 1943., Am, § 1, ch. 22730, 1945.

,, CHAPTER 49 . .

Legal and Official Advertisements.

§ 49.03 And only ge·rmane requirements· need be stated. -In accord with original see Eckersley v. Eck-ersley, 157 F'la. 722, 26 So. (2d!) 811. HISTORY.

Purpose of statement as to age.-The prime purpose of the requirement of this section, that the age of the defendant shall be stated, is to apprise the court of the fact that minors are involved in the litigation, so that a guardian ad litem may be appointed to represent their interests. Sample v. Ward, 156 Fla. 210, 23 So. (2d) 81.

Where it is shown that a party defendant is or has been lawfully married, the requirement

Am. § 7, ch. 22858, 1945.

HISTORY.'' § 49.06

Am. § 1, ch. 23663, 1947.

§ 49.07 HISTORY.

Comp. §§ 1, 2, ch. 21682, 1943.

[ 21]


CHAPTER 50.

Appearances, Pleadings, Defaults.


The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating · defendant from impeding plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to plantifi so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by defendant. Coggin v. Barfield, 150 Fla. 551, 8 So. (2d) 9, 11, wherein defendant's plea was sent to wrong county by mistake. Doubt resolved in favor of granting application.

The opening of judgments is a matter of judicial discretion and in a case of reasonable doubt, where there has been no trial upon the merits, this discretion is usually exercised in favor of granting the application so as to permit a determination of the controversy upon the merits. Coggin v. Barfield, 150 Fla. 551, 8 So. (2d) 9, 11.

Cited in State v. Howell, 156 Fla. 163, 23 So. (2d) 153.


Cited in State v. Howell, 156 Fla. 163, 23 So. (2d) 153.


Cited in Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So. (2d) 438.


When a motion to quash and an answer have been filed at the same time, the court, in the exercise of its discretion, may determine which pleading shall be disposed of first, upon the same principle which prevails in a strictly common law proceeding under this section. State v. Gray, 157 Fla. 229, 25 So. (2d) 492.

And in the event the pleadings are heard together, the court may consider the allegations of the return or answer against, but not in aid of, the grounds for quashal asserted in the motion to quash. Id.

§ 50.29 HISTORY.

Am. § 7, ch. 22858, 1945.

CHAPTER 51.

Actions at Law, Pleadings of the Plaintiff.

§ 51.04 ANNOTATION. False imprisonment.-

To be liable in an action for false imprisonment, one must have personally and actively

participated therein, directly or by indirect procurement. Johnson v. Weiner, 155 Fla. 169, 19 So. <2d) 699.

Actual malice and bad motive is not an element essential to sustain an action for false imprisonment. Id.

All those who, by direct act or indirect procurement, personally participate in or proximately cause the false imprisonment and unlawful detention are liable therefor. Id.


II. BILLOFPARTICULARS

Prior to the adoption of common law rule 16, a .bill of particulars was not a part of the declaration unless specifically made so by apt words in the declaration. Roberts v. Seaboard! Surety Co., 158 Fla. 686, 29 So. (2d) 743.

When a bill of particulars is attached to and made a part of the declaration, then the plaintiff is bound by it and in proof cannot go beyond it. Roberts v. Soobowrd Surety Oo., 158 Fla. 686, 29 So. (2d) 743.

§ 51.12 HISTORY.

Comp. § 1, ch. 24199, 1947.

CHAPTER 52.

Actioris at Law; Pleadings of the Defendant.


II. CONTRADICTORY PLEAS.

Not guilty and pleas under consideration. In accord with 2nd paragraph in original.

See Biscayne Beach Theatre v. Hill, 151 Fla. 1, 9 So. <2d> 109.

§ 52.06 HISTORY.

Am. § 7, ch. 22858, 1945.


I. PURPOSE AND GENERAL CONSIDERATION.

And it is a. statutory privilege. It is important to bear in mind that the

remedy is of statutory origin. Proodian v. Plymouth Citrus Growers Ass'n, 149 Fla. 507, 6 So. (2d) 531, 532.

Compulsory as opposed to permissive counterclaims.-Compulsory counterclaims, under this section are those springing from the same transaction; permissive are those not having that characteristic. The former, therefore, seem to be those recognized as presentable by recoupment; the latter by set-of!. Metropolitan Cas. Ins. Co. v. Walker, 151 Fla. 314, 9 So. (2d) 361, 362.

[ 22]

1947 CUMuLATIVE SUPPLEMENT TO VOLUME ll, FLORIDA STATUTES, 1941 § 52.20

Jurisdiction of court as affecting presentment of claim.-If defendant's and plaintiff's demands have sprung from the same transaction, the former must present his claim regardless of the amount and the jurisdiction of the court. If, on the other hand, the claims do not have a common origin, he may present the· counterclaim if it is within the court's jurisdiction. Metropolitan Cas. Ins. Co. v. Walker, 151 Fla. 314, 9 So. (2d) 361, 362.

"Counterclaim."-Under this section the word "counterclaim" is used in its generic and not in its technical or distinctive sense. Symonds v. Browning, 156 Fla. 808, 24 So. (2d) 526.

Applied in Bassett v. Edwards, 158 Fla. 848, 30 So. (2d) 374; State v. Hendry, <Fla.) 31 So. (2d) 254.

ll. ESSENTIAL ELEMENTS OF SET-OFF.

A. Mutuality. There must be a mutuality of parties before

the plea of set-off will lie. It will only lie against the real party in interest. Proodian v. Plymouth Citrus Growers Ass'n, 149 Fla. 507, 6 So. (2d) 531, 532.

And independent demands cannot be set-off. Where plaintiffs action was for recovery of

expenditures resulting from the imPJ"oper issuance of an injunction to prevent the plaintiff from paying money to a third party, and defendant's counter demand was for professional services to the third party performed at plaintiff's request, the claims did not spring from one transaction. Metropolitan Cas. Ins. Co. v. Walker, 151 Fla. 314, 9 So. <2d) 361, 362.

Ill. PLEADING AND PRACTICE. Judgment in excess of plaintiff's clalm.-Our

statute allows a personal judgment in excess of plaintiff's claim on proper showing. Proodian v. Plymouth Citrus Growers Ass'n, 149 Fla. 607, 6 So. <2d) 531, 532.


Purpose of section.-It was the aim of the legislature to require a defendant having a claim originating in the same occurrence as plaintiff's to plead it and if it was of an amount in excess of the court's jurisdiction, to make it incumbent on the court to transfer the cause to the proper tribunal. Metropolitan Cas. Ins. Co. v. Walker, 151 Fla. 314, 9 So. (2d) 361, 362.

The . nature of the demands may be gleaned only from the declaration and plea in determining whether or not defendant's claim, exceeding court's jurisdiction, originated in same ocourrenoo rus plainJtiff's, thlrut is, whether it is a compulsory or permissive counter demand. Metropolitan Cas. Ins. Co. v. Walker, 151 Fla. 314, . 9 So. <2d) 361.

The provisions of this section necessarily contemplates that the court may determine, and ill f<act muS't determine, whether or niot the oompulsory counterclaim exceeds the jurisdiction of

the court wherein the suit is pending and the duty is on the oounterclaimant to make such allegations as will show thrut lhis compulsory counterolaim is an enforceable claim arising out of the transaction or occUITence that is the subject matter of the action and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. State v. Hendry, <Fla.), 31 So. (2d) 254.

Permission to present clalm not arising from common transaction.-If a counter demand does not arise from the common transaction, permission is given to present it in the Sa.me suit only if it is entertainable by that court as no provision is included in this section for transfer of causes involving permissive counter demands. Metropolitan Cas. Ins. Co. v. Walker, 151 Fla. 314, 9 So. (2d) 361, 362.

Procedure where permissive counterclaim exceeding court's jurisdiction is presented-Where defendant by plea attempted to present a perln.issive counterclaim exceeding county court's jurisdiction and the cause was transferred t9 the circuit court the circuit judge should 'remand the cause so that the county court may strike the plea, unless it be amended to show the compulsoriness of the counterclaim, or that defendant's claims do not exceed county court's jurisdiction. Metropolitan Cas. Ins. Co. v. Walker, 151 Fla. 314, 9 So. (2d) 361, 363.

Applied in Bassett v. Edwards, 15i8 Fla. 848, 30 So. (2d) 374.


Applied in Bassett v. Edwards, 158 Fla. 848, 30 So. (2d) 374.

Cited in State v. Hendry, (Fla.), 31 So. (2d) 254.


I. SCOPE AND EFFECT 'OF PLEA.

Burden of proof.-Where defendant bus company introduced no evidence and offered only a plea of "not guilty" in an action arising otit of a collision between automobile, in which plaintiffs were occupants, and bus, defendant admitted the ownership of the bus and the agency of the driver thereof and that the driver was acting in the scope of his employment, but did not relieve the plaintiff the ·burden of identifying the bus. Florida Motor Lines v. Millian, 157 Fla. 21, 24 So. (2d) 710.

Plea is limited to denial of breach of duty or wrongful act.,.-In accord with original see Cason v. Baskin, (Fla.), 30 So. (2cli) 635 ·(dis. op.).

As to what ·are matters of inducement see, Red Top Cab & Baggage Co. v. Domer, (Fla.), 32 So. (2d) 321.

§ . 52.20 ANNOTATION.

Held not to apply 'in Crompton v. Kirkland, 157 Fla. :89, 24' So. (2d) 90.2.

[ 23]

§ 52.24 1947 CUMULATIVE SUPPLEMENT TO VOLUMED, FLORIDA STATUTES, 1941

§ 52.24 HISTORY.

Comp. §§ 1, 2, ch. 21902, 1943.

CHAPTER 54.

Trial 'Practice and Procedure.

§ 54.06 HISTORY.

Am. § 1, ch. 21993, 1943. Am. § 1, ch. ·24351, 1947.


Applied in Western Union Tel. Co. v. Su1t, 153 Fla. 490, 15 So. (2d) 33.


Peremptory challenges where there are two or more defendants.-Under this section if there are two or more defendants and their interests are separate or antagonistic, each may be allowed the number of peremptory challenges prescribed by law, but when their interests are common it is error to allow more than the number prescribed by law. Williams v. Pichard, 150 Fla. 371, 7 So. (2d) 468, holding it error to allow defendants five peremptory challenges in an action in ejectment against a husband and wife, wherein the wife's claim in the disputed premises was limited to her inchoate right of dower.


Purpose of view.-Although no evidence may be taken at view by the jury the purpose of a view is to assist the· jury in analyzing and applying the evidence taken at the trial. Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 8QO, 15 So. (2d) 903, 906.

Consideration of ordinary physical facts in view.--Jurors, in arriving at their verdict, or in considering the credibility of a witness may take into account ordinary physical facts apparent to them on a view ordered by the . court when such physical facts belied testimony coming from the witness stand to the contrary. DempseyVanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So. (2d) 903, 906.

§ 54.17 HISTORY.

Am. § 1, ()h. 2l888, 1943.

ANNOTATION.

I. INSTRUCTIONS ONLY ON LAW OF CASE.

"The 1atw of .the case" contemplated by this section, includes the weight to be given by juries to confessions as enunciated by the several decisions and utterances of the supreme court. Harrison v. State, 149 Fla. 365, 5 So. (2d) 703,

707; see also Hill v. State, 158 Fla. 889, 30 So. (2dl) 497 (dis. op.).

So an instruction on facts or assuming facts proven is erroneous.

Charges to jury in Russell v. Powell, ~.52 Fla. 102, 10 So. (2d) 907, 908, were held not bad on ground that they ~>Ssumed that defendants were negligent, but to ·IJe nearer bad as charging on the facts rather than the law.

And no comment may be made on facts proved or not proved.-The charge must be confined to the law of the case insofar as the proof may ttmd to support the pleadings and no comment may be made by the trial judge on the facts which may or may not be proved. Schwartz 'V. Priest, 153 Fla. 458, 14 So. (2d> 845.

The legal sufficiency of the evidence is a matter of law for the court to determine. Saucer v. West Palm Beach, 155 Fla. 659, 21 So. (2d> 452.

The presumptions are in favor of the ruling made by the court, and the burden is on the plaintiff in error to clearly show from the evidence that the court committed the error assigned. Saucer v. West Palm Beach, 155 Fla. 659, 21 So. (2d> 452.

Submission to jury.-Where there is evidence to support an issue,

it should be submitted to the jury; but otherwise not. Saucer v. West Palm Beach, 155 Fla. 659, 21 So. (2d) 452.

II. DIRECTED VERDICT.

A. In General. Thus the party moving admits facts stated and

conclusions that may be inferred.-In a.coord with original see Roo Top Cab & Baggage eo. v. Dorner, <Fla.), 32 So. (2d) 321; General Ace. Fia'e & Life Assur. Corp. v:. Schero, 160 F. (2d) 775.

But when there is an absence of all evidence to establish liability, and nothing from which liability may ·be fairly and reasonably inf·erred, t'he motion for direc·ted verdict shouldi be gmn:ted. General Ace. Fire & Life Assur. Corp. v. Sc-hero, 160 F. (2d) 775.

Applied in Hughs v. Miami Coca Cola Bottling Co., 155 Fla. 299, 19 So. (2d) 862; Ehrens v. Miami Transit Co., 155 Fla. 394, 20 So. (2d) 261.

Quoted in parl OJll petition for rehiealring in Ball v. Ywtes, 158· Fla. 521, 29 So. (2d) 729.


Cited in Florida Motor Lines Corp. v. Barry, 158 Fla. 123, 27 so. <2d> 753.


Province of court under section.-It is within the court's province when jury returns to courtroom to announce a failure to accord, to determine whether there has been "due and

[ 24]

1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941 § 55.0'7-1

thorough deliberation upon the cause." Even if this question be decided in the affirmative it is within the court's power to . "expl~in to them anew the law applicable to the case, and • • • send them out again for further deliberation." Brown v. State, 152 Fla.- 508, 12 So. (2d) 292 ~

Appearances made by jury of its own volition. ~:I'h!'l language of . this section that "if they s:Qall return a second time • • • they shall not be sent out again," etc., means that the first and second appe,arances contemplated are those made by a jury of its own volition for the purpose of reporting to the court a failure to reach a verdict . . Brown v. State, 152 Fla. 508, 12 So. -(2d) 292, 293.

-. § 54.23 . ANNOTATION.


Applied, generally, in Mutual Life Ins. Co. v. Ewing, 151 Fla. 661, 10 So. (2d) 316; Metropolitan Life Ins. Co. v. Jenkins, 152 Fla. 486, 12 So. (2.d) 374; Davis v. State, 156 Fla. 178, 23 So. . (2d) 87; Alvarez v. State, 157 Fla. 254, 25 So. (2d) 661.

Cited in Russell v. Powell, 152 Fla. 102, 10 So. (2d) 907; Gainer v. Altamonte Springs, 156 Fla.

.346, 22 So. (2d> 790.

m: IMPROPER ADMISSION OR REJECTION OF EVIDENCE.

Illustrative cases. In rape prosecution, where a man's shoe was

found in the neighborhood of the scene of the crime, permitting witness to testify that he sold the shoe to defendant was at most harmless error. Flowers v. ·state, 152 Fla. 649, 1'2 So. (2d> 772, 777.

t'

IV . . ERROR AS TO PLEADINGS OR PROCEDURE.

Opening statement by counsel.~ - Whether or not counsel shall present opening statements prior to the introduction of evidence must be left to the sound discretion of the trial court. Where the court declines to allow such opening statements to be made by counsel the burden is on the party asserting error affirmatively to show that such action on the part of the court has resulted in great prejudice to the defendant · or a miscarriage of justice. Woods v. State, 154 Fla. 203, 17 So. (2d) 112, see also Henderson v. State, 158 F1a. 684, 29 So. (2d) 698.

§'' 54.24 ANNOTATION.

. ,.

VI. MOTIONS STANDING OVER OPERATING AS SUPERSEDEAS • .

Motions for new trial standing over from one term to another do not operate as a supersedeas unless so ordered by the court, and if the party making the motion desires the execution of the judgment stayed or superseded, h~ should apply

to the judge for an order to that effect. Hollywood v. Clark, 153 Fla. 501, 15 So. (2d) 175, 180.

ANNOTATION.Illustrations.-

§ 54.26·

There was· no error in the ruling that there was no criminal prosecution pending against a juror, after the case was transferred to the absentee docket, and the verdict rendered by the jury, therefore, was valid. However, any error was harmless under this section. Likens v. State, 153 Fla. 887, 16 So. (2d) 158.

Prescribed formalities of procedure, when relating to the means by which jurisdiction is to be acquired, are substantive and must be pursued with great strictness, but when relating to the exercise of jurisdiction which is otherwise complete, a breach thereof not shown to be harmful is taken to be harmless error. In re Johnson, 157 Fla. 25, 24 So. (2d) 711.

CHAPTER 55.

Judgments and Executions .


Where a judgment was secured and satisfied against the husband before his death, the widow's right of dower is in pari materia with and must be read in connection with this chapter. In re Hester's Estate, 158 Fla. 170, 28 So. (2d) 164.


Applied in The Guanancita, 69 F. Supp. 928.

§ 55.05 ANNOTATION. "Before action is' broUgllt.''-

In accord· with original, see United Mercantile Agencies v. Bissonnette, 155 Fla. 22, 19 So. (2d> 466.


This section is in derogation of ·the common Iaw.-In accord with original see Roberts v. Seaboalrd Surety Co., 158 Fia. 686, 29 So. (2d) 743.

· And rule is that judgment must be against all defendants sued jointly unless section is strictly complied with.-lin accord with original see Robe!t"ts v. Seaboard Surety Co., 158 Fla. 686, 29 So . (2d) 743.

Cited in Petition of Florida State Bar Ass'n, etc., 155 Fla. 710, 21 So. (2d) 605, 610.

· Applied in Alderman v. Puleston, 156 Fla. 731, 24 So. (2d) 527. ·

§ 55.07-1 HISTORY.

Comp. § l, ch. · 22843, 1945.

[ 25]




Applied in Gilpen v. Bower, 152 Fla. 733, 12 So. <2d) 884. Stated ih Spurway v. Dyer, 48 F. Supp. 255.

IV. PROPERTY '.r.O WHICH MEN ATTACHES.

Land actually conveyed before the judgment is rendered is not affected, etc.-In accord with original see Mic:haels v. Albert Pick & Co., 158 Fla. 877, 30 So. (2d) 498.


Judgments of a United States district court shall become and cease to be liens under the same conditions as judgments of state courts. Lott v. Padgett, 153 Fla. 304, 14 So. (2d} 667, 668.


This section does not preclude mandamus against a municipality to require the payment of a judgment. Ocoee v. State, 155 Fla. 514, 20 So. (2d) 674.


Interpretation of section.-This section should be interpreted in the light of the background of the common law. Spurway v. Dyer, 48 F . Supp. 255, 257.

A judgment is not dormant after three years and only to be revived within seven years. Spurway v. Dyer, 48 F. Supp. 255, 258. Must obtain execution within three years or sue on judgment or obtain scire facias.

The plaintiff may have execution as of right upon request within three years from the rendition of judgment, in view of this section. Lott v. Padgett, 153 Fla. 304, 14 So. (2d) 667, 669.

The scire facias proceeding, not being a new and independent action, the seven year statute of limitation < § 95.11), did not apply. Id.

But right of scire facias is preserved when execution not issued-When the right to issuance of execution was not exercised during the three-year period, the right of scire facias brought over from the common law is preserved. Spurway v. Dyer, 48 F . Supp. 255, 258.

Tihe right to enforce the lien only is suspended after the lapse of three years, where execution is not issued, until such right is restored by scire facias. Lott v. Padgett, 153 Fla. 304, 14 So. (2d> 667, 669.

Application of twenty-year period.-The twenty-year period provided for in this section applies to a renewal of a writ once issued, but the

fundamental distinction characterizing the judgment that is revived, constitutes a distinct departure from the common law. Spurway v. Dyer, 48 F. Supp. 255, 258.


Intention of section.-It ·was intended evidently by this section not only to declare the law as to the right of execution, but to provide for the life of the execution, and how it should be disposed of when issued. Spurway v. Dyer, 48 F. Supp. 255, 259.

This section wa.S only intended to correct errors and omissions which had occurred in the drafting and enactment of the Probate Act. There was no intention to abrogate and annul the provisions of the preceding section. Id.

This section is of a remedial nature and not retroactive. Spurway v. Dyer, 48 F. Supp. 255, 259.

It is not mandatory upon the clerk to issue a writ of execution under this section upon rendition of judgment. Spurway v. Dyer, 48 F. Supp. 255, 259.

Execution by scire facias.-If not sued out within three years then execution can be had by scire facias. Once it is sued out it is not necessary to renew same by scire facias. This was dispensed with by this section. Lott v. Padgett, 153 Fla. 304, 14 So. <2d) 667, 669.


Execution against judgment debtor's partnership interest.-The language of this section is sufficiently comprehensive to authorize a sale under execution of the judgment debtor's partnership interest in · the firm. Lott v. Padgett, 153 Fla. 308, 14 So. (2d) 669, 670.

The writ of elegit is not in force in Florida, because it is inconsistent with this section. Spurway v. Dyer, 48 F. Supp. 255, 257.

The title of the owner who has entered into an executory contract to convey land is subject to levy and sale, etc.-See a lso Michaels v. Albert . Pick & Co., 158 Fla. 877, 30 So. (2d) 498.

Applied in Riesen v. Maryland Cas. Co., 153 Fla. 205, 14 So. (2d) 197, treated under § 47.49, to which reference is hereby made.

§ 55.34 ANNOTATION. Sureties executing forthcoming bond, etc.

In accord with original. See state v. Bumside, 153 Fla. 599, 15 So. <2d) 324.


Applied in Fair v. Tampa Elec. Co., 158 Fla. 15, ·27 So. (2d) 514.

[ 26]



II. GENERAL CONSIDERATION.

Cited in Saffran v. Adler, 152 Fla. 405, 12 So. (2d) 124,

§ 55.62 HISTORY.

Comp. §§ 1-3, ch. 22672, 1945.

CHAPTER 56.

Referees and References.


Cited in Miami Beach v. Undercliff Realty etc., Co., 155 Fla. 805, 21 So. (2d) 783.

CHAPTER 59.

Appellate Proceedings, Generally.

§ 59.01 HISTORY.

Am. § 1, ch. 2285~. 1945.

ANNOTATION. In general.-The passage of chapter 22854,

from which this chapter is derived, by the 1945 legislature was intended to consolidate, revise and amend this chapter and chapter 67, to conform these chapters to the current supreme court rules, and to extend them to appellate proceedings from orders of state boards, commissions and other bodies where appeals are allowed. Fonell v. Williams, 157 Fla. 673, 26 So. (2d) 800.

The purpose for issuance of a common-law writ of certiorari by the supreme court to a circuit court is to determine whether the judgment sought to be reviewed is illegal, or is essentially irregular, or prejudicial and materially harmful to the complaining party. London Guarantee, etc., Co. v. Helmly Furniture Co., 153 Fla. 453, 14 So. (2d) 848, 849.

Before the common-law writ of certiorari will issue it must appear that: ( 1) the inferior tribuna.! or commission has committed some error of law; (2) the error has caused substantial ihlalrm; (3) the petitrooor has been guilty of no Laches in seeking his remedy. Leonard Bros. Transfer & Storage Co. v. DougJ.ru;s, (Fla.), 32 So. (2dJ) 156.

And :a;ll petitions for certioml'·i should be specific in respect to thes·e essential matters, and the acts deemed to be e:r.ror shouldr be assigned with such pail'ticularity as to slhow error and such acts must be made to appeai' to have been. harmful. Id.

As to the dis·tinction between prohibition and oertiurari see Locenzo v. MUJl'phy, <FLa.), 32 So. (2d) 421.

Cited in Batten v. Daoud, 152 Fla. 448, 12 So. (2d) 299 (dis. op.); CleMy Bi'os. Const. Co. v.

Phelps, 156 Fla. 461, 24 So. (2d) 51, on petition for rehearing.

§ 59.02 HISTORY.

Am. § 2, ch. 22854, 1945.

ANNOTATION.


Question considered although subsection (3) was disregarded in Randall v. Randall, 158 Fla. 502, 29 So. (2d) 238.

Cited in Patten v. Daoud, 152 Fla. 448, 12 So. (2d) 299 (dis. op.).

II. JUDGMENT MUST BE "FINAL."

A. General Principles. And must adjudicate merits, etc.-

In accoi'd with original, see Goldfarb v. Bi'onston, 154 Fla. 180, 17 So. (2d) 300.

Appeals are now used instead of writs of error to i'eview judgments at law as well as decrees in equity, but that change in the method of invoking appellate review does not enlai'ge the class of judgments or decrees which are subject to appellate review. Goldfai'b v. Bronston, 154 Fla. 180, 17 So. (2d) 300.

Wi'its of enor or appeals in common law cases can be brought only upon a final judgment, and that interlocutoi'y rulings and orders in common law cases can only be reviewed when the cause is brought before the appellate court by appeal fmm, or Wi'it of erroi' to, the final judgment, which is one that disposes of and terminates the entii'e cause. Id.

Appeals in law actions shall lie only fi'om a final judgment. Hendei'son v. Stephens, 157 Fla. 641, 26 So. <2d) 656.

§ 59.03 HISTORY.

Am. § 3, eh. 22854, 1945.

§ 59.04 HISTORY.

Am. § 4, ch. 22854, 1945.

ANNOTATION.


Order denying certiorari to review order striking language from declaration, held not final. Bernhart v. Peebles, 153 Fla. 431, 14 So. <2d) 722.

Applied in Cox v. Hoover, 151 Fla. 740, 10 So (2d) 563.

Cited in Russell v. Powell, 152 Fla. 102, 10 So. (2d) 907; Patten v. Daoud, 152 Fla. 448, 12 So. (2d) 299 (dis. op.); Petition of Florida State Bar Ass'n, etc. (Fla.) , 21 So. (2d) 605, 615; Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So. (2d) 346; Goldfarb v. Bronston, 154 Fla. 180, 17 So. (2d) 300.

[ 27]


§ 59.05 HISTORY.

Am. § 5, ch. 22854, 1945.

ANNOTATION. Cited in Patten v. Daoud, 152 Fla. 448, 12 So.

(2d> 299 (dis. op.>; Goldfarb v. Bronston, 154 Fla. 180, 17 So. (2d) 300.

§ 59.06 HISTORY.

Am. § 6, ch. 22854, 1945.

§ 59.07 HISTORY.

Am. § 7, ch. 22854, 1945.

§ 59.08 HISTORY.

Am. § 8, ch. 22854, 1945.

ANNOTATION. In general.-Section 33.11 was not modified by

passage of chapter 22854, acts of 1945, from which this s ection is derived. Fonell v. Williams, 157 Fla. 673, 26 So. (2d) 800.

Writs taken before or after effective date of statute.-Under this section where a writ of error or an appeal is taken from a judgment, decree or order which was entered before noon of October 1, 1941, such writ of error or appeal must be duly taken within sixty days after noon October 1, 1941, and also within six months after the date of the judgment or the entry of the decree or order appealed from. A writ of error or an appeal from a judgment, decree or order that was entered after noon of October 1, 1941, must be taken within sixty days after the date of the judgment or the entry of the decree or order appealed from. Harkins v. Atlantic Nat. Bank, 149 Fla. 229, 7 So. (2d) 3; Miami Beach v. G. A. P. Co., 149 Fla. 557, 7 So. (2d) 9; De Bowes v. De Bowes, 149 Fla. 545, 7 So. (2d) 4; Scott v. Wellacott, 149 Fla. 537, 6 So. <2d) 622; Beaty v. Inlet Beach, 149 Fla. 541, 7 So. (2d) 1; Chewning v. Pollak, 149 Fla. 544, 7 So. (2d) 4.

Reasonable time allowed for appeals taken prior to effective date of sta.tute.-A reasonable time for taking appeals from judgments or decrees entered prior to October 1, 1941, is afforded which avoids possible . illegality in the operation of this section, as applied to judgments and decrees entered prior to October 1, 1941. De Bowes v. De Bowes, 149 Fla. 545, 7 So. (2d) 4, 8.

This section was never intended to repeal Chapter 746.

In re Wade, 150 Fla. 440, 7 So. (2d) 797, 798.

And § 732.19 is controlling as to time for taking appeals in probate proceedings.-There is nothing in this section to indicate a legislative intent to supersede or to repeal any of the express provisions of § 732.19, therefore such

section is controlling as to the time for taking appeals from circuit court to supreme court in probate proceedings. Russ v. Solomon, 151 Fla. 10, 9 So. <2d> 95, 96.

Failure to record appeal within 60 days was not fatal where supreme court rule 11,. requiring statement of questions proposed, was complied with. Godson v. Surf Club, 150 Fla. 655, 8 So. (2d) 279.

Petition for rehearing was properly before the supreme court in De Bowes v. De Bowes, 149 Fla. 545, 7 So. (2d) 4, 7.

Motion to dismiss appeal was properly denied. -Where a final decree was entered September 5, 1941, and the appeal therefrom was taken November 28, 1941, a motion to dismiss the appeal, upon the theory that it was taken in violation of this section was properly denied January 5, 1942. Harkins v. Atlantic Nat. Bank, 149 Fla. 229, 7 So. (2d) 3.

Time element cannot be waived.-The time within which appellate review can be

invoked is statutory and jurisdictional, and cannot be waived by the appellees or respondents. Sirman v. Conklin, 154 Fla. 304, 17 So. (2d) 298.

Cited in Russ v. Solomon: 152 Fla. 348, 12 So. (2d ) 121.

Applied in Saffran v. Adler, 152 Fla. 405, 12 So. (2d) 124; Winn, etc., Gm. Co. v. Luke, 156 Fla. 638, 24 So. (2d) 310.

§ 59.09 HISTORY.

Am. § 9, ch. 22854, 1945.

ANNOTATION. Applied in Walker v. Jacksonville, 154 Fla. 893,

19 So. <2d) 372.

§ 59.10 HISTORY.

Am. § 10, ch. 22854, 1945.

§ 59.11 HISTORY.

Am. § 11, ch. 22854, 1945.

§ 59.12 HISTORY.

Am. § 12, ch. 22854, 1945.

§ 59.13 IllS TORY.

Am. § 13, ch. 22854, 1945.

§ 59.14 HISTORY.

Am. § 1, ch. 22027, 1943. Am. § 14, ch. 22854, 1945.

§ 59.15 HISTORY.

Am. § 15, ch. 22854, 1945.

[ 28]


ANNOTATION. § 59.28 Cited in Cohen v. Cohen, 158 Fla. 802, 30 So. HISTORY.

(2d) 307 (con. o.p.). Am. § 28, ch. 22854, 1945.

§ 59.16 §. 59.29 HISTORY. HISTORY.

Am. § 16, ch. 22854, 1945. Am. § 29, ch. 22854, 1945. ANNOTATION.

Cited in Oohen v. Cohen, 158 FLa. 802, 30 So. § 59.30 (2d) 307 <con. op.). HISTORY.

§ 59.17 JJISTORY.

Am. § 17, ch. 22854, 1945.

§ 59.18 HISTORY.

Am. § 18, ch. 22854, 1945.

§ 59.19 HISTORY.

Am. § 19, ch. 22854, 1945.

§ 59.20 HISTORY.

Am. § 20, ch. 22854, 1945.

§ 59.21 HISTORY.

Am. § 21, ch. 22854, 1945.

ANNOTATION. This and the following five sections are in

pari materia with § 28 .24 providing fees to be charged by clerk of circuit court acting as clerk or recorder. In re Wade, 152 Fla. 546, 12 So. (2d) 449.

§ 59.22 HISTORY.

Am. § 22, ch. 22854, 1945.

§ 59.23 HISTORY.

Am. § 23, ch. 22854, 1945.

§ 59.24 HISTORY.

Am. § 24, ch. 22854, 1945.

§ 59.25 HISTORY.

Am. § 25 , ch. 22854, 1945.

§ 59.26 HISTORY.

Am. § 26, ch. 22854, 1945.

§ 59.27 HISTORY.

Am. § 27, ch. 22854, 1945.

Am. § 30, ch. 22854, 1945.

ANNOTATION. Cited in In re Lofton's Estate, 152 Fla. 626,

12 So. <2d) 587.

§ 59.31 HISTORY.

Am. § 31, ch. 22854, 1945.

§ 59.32 HISTORY.

Am. § 32, ch. 22854, 1945.

ANNOTATION. Cited in Bennett v. Bennett, 157 Fla. 512, 26

So. (2d) 505.

§ 59.33 HISTORY.

Am. § 33, ch. 22854, 1945.

ANNOTATION. Applied in Lane v. State, 154 Fla. 853, 19 So.

(2d) 366.

§ 59.34 HISTORY.

Am. § 34, ch. 22854, 1945.

ANNOTATION. Verdict and Judgment are given due consid

eration on appeal.-On appeal from a final judgment the verdict of the jury and the judgment of the trial court thereon will be given due consideration and weight in determining the correctness of the judgment, yet the supreme court exercises its judicial power of appellate review under the constitution and renders its appropriate judgment as required by this section. Nelson v. McMillan, 151 Fla. 847, 10 So. (2d:> 565, 567; see a.lso Cason v. Baskin <Fla.),

30 So. (2d) 635.

Where trial court failed to carry out order of supreme court.-Where the supreme court eutered an order in a mortgage foreclosure suit which directed the trial court to restore posse~;sion of the premises involved to a named person immediately, but after more than three months, the cause again came before the supreme court on petition of the named person praying that the former order be carried out, on authority of this section, it was decreed that petitioner be placed in full possession of the premises involved at once. Bridier v. Burns, 150 Fla. 238, 7 So. (2d) 142, 143.

[ 29]


Entry of direct order and judgment by supreme court.-The supreme court may in the exercise of its appellate jurisdiction under this section enter its direct judgment and order where it is made to appear that the circuit court failed to comply with the previous order of the supreme court in this regard. When that order was entered in the circuit court it became an order and judgment of the circuit court, as well as remaining an order and judgment of the supreme court. Bridier v: Burns, 153 Fla. 334, 14 So. (2d) 719, 720.

Review and enforcement of orders made upon direction of supreme court.-Orders made by the circuit court upon direction of supreme court are the orders and judgments of the circuit court, and the power to enforce the provisions of such orders lies in the circuit court, subject, of course, to review by the supreme court under applicable procedure. Bridier v. Burns, 153 Fla. 334, 14 So. (2d) 719, 720.

Verdicts assessing damages under § 768.03 are subject to judicial review. Kenan v. Black, 150 Fla. 208, 7 So. (2d) 462, 463.

Where nominal damages go to establish some question of permanent right, or entitle plaintiff to costs, a new trial may be awarded for an erroneous failure to give nominal damages. Cason v. Baskin, <Fla.), 30 So. (2d) 635.

Power of dismissal.-Under this section, where it appears to the

court that an appeal is frivolous and without merit, the power exists in the appellate court to dismiss the proceedings. Lane v. State, 154 Fla. 853, 19 So. (2d) 366.

Applied in Hunter v. Kearley, 155 Fla. 222, 19 So. (2d) 788; DuPree v. DuPree, 158 Fla. 439, 28 So. (2d) 907.

Cited in McRae v. Robbins, 151 Fla. 109, 9 So. (2d) 284 <oon. op. of Whitfield, J.); Williams v.

Sta:te 158 Fla. 415, 28 So. (2d) 691.

Quoted in Nelson v. Lindsey, 151 Fla. 596, 10 So. <2d) 131.

§ 59.35 HISTORY.

Am. § 35, ch. 22854, 1945.

ANNOTATION. If not limited, new trial is on all issues.

Where the supreme court on a writ of error adjudged the amount of a verdict and judgment excessive and the judgment appealed from was "reversed and a new trial awarded," such judgment did not direct a new trial on a part only of the issues involved in the cause but the reversal was for a new trial of the entire case. Kenan v. Black, 150 Fla. 208, 7 So. (2d) 462.

Entry of proper judgment may be directed.When the supreme court reverses a judgment it has the power to direct the entry of such judgment as may be proper in law. State v. Tedder, 150 Fla. 175, 8 So. (2d) 470.

§ 59.36 HISTORY.

Am. § 36, ch. 22854, 1945.

§ 59.37 HISTORY.

Am. § 37, ch. 22854, 1945.

§ 59.38 HISTORY.

Am. § 38, ch. 22854, 1945.

ANNOTATION. Cited in F1onell v. Wil1iams, 157 Fl•a. 673, 26 So.

(2d) 800.

§ 59.39 HISTORY.

Repealed by § 39, ch. 22854, 1945.

ANNOTATION.

Cited! in Fonell v. Williams, 157 Fla. 673, 26 So. (2d) 800.

§ 59.40 HISTORY.

Repealed by § 40, ch. 22854, 1945.

ANNOTATION.

Cited in FoneU v. WillLams, 157 Fla. 673, 26 So. (2d) 800.

§ 59.41 HISTORY.

Am. § 41, ch. 22854, 1945.

ANNOTATION.

Cited in Fonell v. WillLams, 157 Fla. 673, 26 So. (2d) 800.

§ 59.42 HISTORY.

Am. § 42, ch. 22854, 1945.

ANNOTATION.

Cited in Fonell v. Williams, 157 Fla. 673, 26 So. (2d) 800.

§ 59.43 HISTORY.

Camp. § 43, ch. 22854, 1945.

ANNOTATION.


§ 59.44 HISTORY.

Comp. § 44, ch. 22854, 1945.

ANNOTATION.


§ 59.45 HISTORY.

Camp. § 1, ch. 23826, 1947.

[30]


CHAPTER 61.

Appellate Proceedings from County and Other Inferior Courts.

§ 61.01 ANNOTATION. Chapter does not apply to appellate procedure in probate matters.

The several provisions of this chapter are inapplicable to probate proceedings. Such proceedings are regulated by the Probate Act. Russ v. Solomon, 152 Fla. 348, 12 So. (2d) 121 , 123.

Cited in Cates v. Heffernan, 154 Fla. 422, 18 So. (2d) 11.


§ 61.02

There is now no controlling rule or regulation which prevails in the circuit courts of the state with reference to settling bills of exceptions, as such; bills of exceptions in appeals from circuit courts having been abolished. Atlantic Coast Line R. Co. v. Gamble, 155 Fla. 678, 21 So. <2d) 348.

In chapter 61, which is the controlling law concerning court appeals, the legislature has prescribed in effect that the rules and regulations in regard to preserving matters in pais arising in county court cases shall be the same "as prevail in circuit courts." Id.

Scope and intent.-By the choice of words used the legislature has

manifested the clear intent that the method, mode or course of procedure for formally -preserving matters in pais arising during the course of proceedings in the civil court of record for the purpose of review in the circuit court shall comport at all times to such procedure as governs county court appeals, and that the procedure controlling the latter shall be at all times, precisely the same as is then in force, or as exists, or is in general use and practice with reference to cases originating in the circuit courts and taken up on appeal. Atlantic Coast Line R. Co. v. Gamble, 155 Fla. 678, 21 So. (2d) 348.

The word "prevail" means "to be or become effective, or effectual; to be in force; to obtain." Atlantic Coast Line R. Co. v. Gamble, 155 Fla. 678, 21 So. (2d) 348.

~ 61.04 ANNOTATION.

Cited in Cates v. Heffernan, 154 Fla. 422, 18 So. (2d) 11.

CHAPTER 62.

General Chancery Jurisdiction and Procedm·e.

§ 62.04 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 62.09 HISTORY.

Repealed by § 1, ch. 22848, 1945; see ch. 87 hereof.

ANNOTATION. Editor's note.-For present provisiOns as to

declaratory decrees and constructions thereof and of this former provision, see § 87.01 et seq.

What pleadings must show.-To make this section applicable the pleading must show that there exists the necessity of judicial determination of the proper construction of the written instrument involved and of plaintiff's rights under such construction. Lippman v. Shapiro, 151 Fla. 327, 9 so. (2d) 636.

Assignment of open account.-It is not the purpose of this section to make the simple and unambiguous assignment of an open account the subject of a chancery suit and to thereby deprive a defendant of the right to trial by jury in a court of law. Lippman v. Shapiro, 151 Fla. 327, 9 So. (2d) 636.

Rights under contract.-Where the Florida Power Corporation was

subject to liquidated damages under a contract with the City of Tallahassee for an interruption of delivery of electricity to the city caused by the hurricane of October 7, 1941, the company was authorized under this section to file a bill in chancery for a declaratory decree of the rights of the parties under the contract, after city had deducted damages from the amount due company. Florida Power Corp. v. Tallahassee, 154 Fla. 638, 18 So. (2d) 671.

Applied in Camden Fire Ins. Ass'n v. Daylight Gro. Co., 152 Fla. 669, 12 So. (2d) 768; Ball v. Branch, 154 Fla. 57, 16 So. (2d) 524; Alsop v. Pierce, 155 Fla. 185, 19 So. (2d) 799.

Cited in Mutual Benefit Health, etc. Ass'n v. Ott, 151 Fla. 185, 9 So. (2d) 383 (dis. op.).

§ 62.11 HISTORY.


§ .62.12 HISTORY.


§ 62.13 HISTORY.


§ 62.16 ANNOTATION. Oral pronouncement not construed as decree.. Where the chancellor stated that he thought a divorce should be granted, but failed to say to which party the divorce should be granted, such oral pronouncement could not be construed as a decree. However, had the chancellor announced a decree, such decree would not have

[ 31 ]


been effective until it had been reduced to writing, signed by the judge, and recorded in the Chancery Order Book, as prc;>vided by this section. Sahler v. Sahler, 154 Fla. 206, 17 So. (2d) 105.

Effect of death of party to divorce suit.-The weight of authority in this country rela

tive to the authority of Courts to enter "Nunc pro Tunc" decrees in divorce suits is to the effect that a "Nunc pro Tunc" decree cannot be entered where one of the parties to a divorce dies before the rendition of a decree. Sahler v. Sahler, 154 Fla. 206, 17 So. <2d) 105.


Cited in Ake v. Chancey, 152 Fla. 677, 13 So. (2d ) 6.

§ 62.27 HISTORY.

Repealed by § 11, ch. 21976, 1943 ; see § § 62.38-62.46.

§ 62.28 HISTORY.

Repealed by § 11, ch. 21976, 1943; see §§ 62 .38-62.46.

§ 62.29 HISTORY.

Repealed bY § 11, ch. 21976, 1943 ; see §§ 62.38-62.46.

§ 62.30 HISTORY.

Repealed by § 11, ch. 21976, 1943 ; see §§ 62.38-62.46.

§ 62.31 HISTORY.

Repealed by § 11, ch. 21976, 1943 ; see §§ 62.38-62.46.


A.Pplied inJ Cregie!r v. State, 158 Fila. 514, 29 So. (2d) 308.

Cited in In re Huss, 157 Fla. 200, 25 So. (2d ) 371.

§ 62.33 IDS TORY.

Am. § 1. ch. 23091 , 1945. Am. § 7, ch. 24337, 1947.


Quoted, in part, in Gilpen v. Bower, 152 Fla. 733, 12 So. (2d ) 884.

Cited in Fort Myers v. Heitman, 149 Fla. 203, 5 So. (2d) 410.


m. PROPERTY SUB.JECT TO BILL.

Equitable assets may be reached under section. -One of the purposes of this section was to authorize a creditors' bill to be filed to reach equitable assets where action at law has already been brought though no final decree can properly be entered on the creditors' bill until the action at law shall have been reduced to judgment. Sebring Co. v. O'Rourke, 101 Fla. 885, 134 So. 556; B. L. E. Realty Corp. v. Mary Williams Co., 101 Fla. 254, 134 So. 47, cited in Riesen v. Maryland Cas. Co., 153 Fla. 205, 14 So. (2d) 197, 199.

§ 62.38 HISTORY.

Comp. § 1, ch. 21976, 1943.

§ 62.39 HISTORY.

Comp. § 2, ch. 21976, 1943.

§ 62.40 HISTORY.

Comp. § 3, ch. 21976, 1943.

§ 62.41 HISTORY.

Comp. § 4, ch. 21976, 1943.

§ 62.42 HISTORY.

Comp. § 5, ch. 21976, 1943.

§ 62.43 HISTORY.

Comp. § 6, ch. 21976, 1943.

§ 62.44 HISTORY.

Comp. § 7, ch. 21976, 1943.

§ 62.45 HISTORY.

Comp. § 8, ch. 21976, 1943.

§ 62.46 HISTORY.

Comp. § 9, ch. 21976, 1943.

CHAPTER 63.

Florida Chancery Procedure Law. ANNOTATION.

This chapter is remedial in its purpose and should be liberally construed. Wilkins & Co. v. Stoer, 157 Fla. 565, 26 So. (2d) 662. <con. op.)

The purpose and intent was not to grant power, but to regulate and liberalize the exercise of existing power conferred by the constitution

[ 32]


and to remove some of the rigidity of the procedure in the furtherance of simplification. Wilkins & Co. v. Stoer, 157 Fla. 565, 26 So. (2d) 662. <con. op.)


Cited in Anderson v. Carlton, 156 F1a. 170, 22 So. (2d) 874; P. W. Wilkins & Co. v. Stoer, 157 Fla. 565, 26 So. (2d) 662 (con. opJ.


Applied in Randall v. Randall, 158 Fla. 502, 29 So. (2d) 238.

§ 63.06 HISTORY.

Am. § 2, ch. 22730, 1945.


Cited in Petition of Florida State Bar Ass'n, etc., 155 Fla. 710, 21 So. (2d) 605, 610.


I. GENERALLY.

Cited in Petition of Florida Sta.te Bar Ass'n, etc., 155 Fla. 710, 2·1 Su. (2d) 605, 616; American Fecl-reTation of !JabO!I: v. Watson, 327 u.s. 582, 66 S . ct. 761, 90 L. Ed. 873 (dis. op.).

Applied in Singletary v. Mann; 157 Fla. 37, 24 So. (2d) 718.

II. NATURE OF INTENT.

One does not have to be a judgment creditor in order to intervene. A claim in equity is equally as good basis to support such a right. Eyles v. Southern Ohio Sav. Bank, etc., Co., 154 Fla. 782, 19 So. (2d) 105.

III. ILLUSTRATIVE CASES.

A. Intervention Held Proper. By husband's creditors in divorce suit.-In a

suit for divorce wherein a judgment was entered in favor of the wife against the husband for moneys recited to have been advanced to him by her, it was held that husband's judgment creditor was entitled to intervene under the provisions of this section, in that judgment creditor had a very real interest in the husband's property. Tallentire v. Burkhart, 150 Fla. 137, 7 So. (2d) 326.

To protect validity of decree. -The terms of this section were sufficient to

warrant appellant in court below to intervene and be made a party defendant for the purpose of protecting the validity of the decree. Eyles v. Southern Ohio Sav. Bank, etc., Co., 154 Fla. 782, 19 So. (2d) 105.


The very purpose of a class suit is 1.0 save a multiplicity of suits, to reduce the expense of litigation, to make legal processes more effective and expeditious, and to make available a remedy that would not otherwise exist. Tenney v. Miami Beach, 152 Fla. 126, 11 So. (2d) 188, 189. See also, State v. Gomez, 152 Fla. 355, 11 So. (2d) 569.

Theory of class suits.-A class suit is brought on the theory ibhat claims, issues, and defenses a;re common and t)hat when the righit of the nominal parties to the suit is adjudicated, the right as to all becomes in effect adjudicated. If the ohianoellor c:annJOt then enter a judgmiP.IIl.t that will affect all in the class, the very basis of the suit is destroyed. Tenney v. Miami Beach, 152 Fla. 126, 11 So. <2d) 188, 190. See also, State v. Gomez, 152 Fla. 355, 11 So. (2d) 569.

Res may be proceeded against.-In an action under this section if the only means of making the judgment effective is to proceed against the res or the subject matter of the suit, the chancellor has power to do so. Tenney v. Miami Beach, 152 Fla. 126, 11 So. (2d) 188, 190. See also, State v. Gomez, 152 Fla. 355, 11 So. (2l1> 569.

Absent parties are represented and bound by decree.-When the court permits a class suit to be brought or defended by one or more of the class, it necessarily follows that absent parties are properly represented and are bound by the decree. Tenney v. Miami Beach, 152 Fla. 126, 11 So. (2d) 188, 189. See also, State v. Gomez, 152 Fla. 355, ·11 So. (2d) 569.

Parties plaintiff in class suit.-In an action under this section where the chancellor had jurisdiction of the parties to the cause and the subject matter of the litigation it was held that those of the class for whose benefit the suit was brought are in effect parties plaintiff. Tenney v. Miami Beach, 152 Fla. 126, 11 So. (2d) 188, 189. See also, State v. Gomez, 152 Fla. 355, 11 So. (2d) 569.

Where decree inequitable as to member of class affected.-If a decree granted under this section is for any reason inequitable as to any member of the class affected, he may make showing of such fact when he applies for cancellation and the chancellor may enter such decree as to h~m is just and proper. It matters not whether he be a nominal party to the cause or if his situation is such as to place him in the class of those affected. Tenney v. Miami Beach, 152 Fla. 126, 11 So. (2d) 188, 189. See also, State v. Gomez 152 Fla. 355, 11 So. <2d) 569.

Illustrative cases. Where property owners instituted a class suit

for benefit of themselves and all others like situated to enjoin the collection of such special assessments as had not been collected and to require return of the money which had been

[ 33 ]

§ 63.19 1947 CUMULATIVE SUPPLEMENT TO VOLUME il, FLORIDA STATUTES, 1941

collected for a tax not lawfully imposed it was held that such suit was in effect a taxpayers' suit maintainable under this section, in that the subject matter was one of common interest to all the property owners against whom the special assessment was attempted to be levied. Miami Beach v. Tenney, 150 Fla. 241, 7 So. (2d) 136.

In an action by a taxpayer and others against a city to cancel certain assessment liens imposed on realty and require return to property owners of funds collected pursuant to such liens, it was held that when the taxpayer's right was adjudicated, it was competent for the court t o adjudicate the right of all in the class and the decree may require cancellation of the void liens on application therefor and on condition of payment by each party of a proportionate amount of the costs including a reasonable attorney's fee. Tenney v. Miami Beach, 152 Fla. 126, 11 So. (2d) 188, 189. See also, State v. Gomez, 152 Fla. 355, 11 So. (2d) 569.


Upon the death of defendant in suit to dissolve partnership, the suit abated and all proceedings thereafter were of no effect in view of this section. Eagle v. Carr, 153 Fla. 224, 14 So. (2d) 268, 269.


Where an action for specific performance of a lease agreement was involved in three suits, and intervenor sought a decree quieting title against all claims of lessee created by the lease agreement, and otherwise; it was held that the parties were the same and that their interest in the property was so intertwined that the chancery suits should be consolidated. Gill v. Rhomberg, 152 Fla. 262, 11 So. (2d) 795, 796.

Cited in Petition of Florida State Bar Ass'n , eto., 155 F1a. 710, 21 So. (2d) 605, 614.


This section seems to have been designed to abolish technical distinctions in pleadings in equity. State v. Lorenz, 149 Fla. 625, 6 So. (2d) 620, holding that proceeding to set aside regular decree is best inaugurated by bill of complaint rather than motion to show cause.

Applied in Lorenz v. Lorenz, 157 Fla. 402, 26 So. (2d) 54.


Proper pleadings.-In Clements v. Roberts, 151 Fla. 669, 10 So. (2d) 425, certain challenged portions of an amended bill were held not irrelevant, immaterial, contrary to law, and did not tend to submit issues that were vague, indefinite, and uncertain under this and the following section.


An answer is not impertinent, etc.-In accord with originaJ see Town of Lake Hamilton v. Hughes, (FLa.), 32 So. (2d) 283.

If the part of aill answer excepted to is relevant, etc.-In accord with the origin!llil see Id.


Stated in Clements v. Roberts, 151 Fla. 669, 10 So. (2d) 425.


Cited in Hollywood v. Clark, 153 Fla. 501, 15 So. (2d) 175; Petition of Florida State Bar Ass'n , etc., 155 Fla. 710, 2'1 So. (2d) 605, 613.


Cited in Klein v. Klein, 158 Fla. 847, 30 So. (2d) 288 <dis. opJ; Franklin v. Spainhour (Fla.), 31 So. (2d) 535.


I. GENERALLY.

The place of residence of the defendant in divorce case is material to such a degree that false testimony about it would constitute perjury. Shelton v. Stifi,te, 157 Fla. 482, 26 So. (2d) 444.

Sufficiency of bill of complaint.-If t'he allegat ions in a bill of c::>mplaint are sufficient to show that complainant is entitled to any relief in equity, it must be held tha t the bill contains equity. Tellerine v. Public Realty Co., 158 Fla. 556, 28 So. (2d) 821.

Cited in Petition of Florida State Bar Ass'n, e tc., 155 Fla. 710, 21 So. (2d) 605, 611.

III. PRAYERS FOR RELIEF.

A prayer for general relief, etc.-Under this section every bill of complaint shall be considered to pray for general relief. Lucian v. Southern Ohio Sav. Bank, etc., Co., 156 Fla. 370, 23 So. (2d) 674.


Motion for final decree on counterclaim.This section authorizes but does not compel the entry of an order denying defendants' motion for final decree on plaintiff's reply to defendants' counterclaim, and the burden is on petitioners to show or establish an abuse of discretion. Roney v. Miami Beach, 151 Fla. 518, 10 So. (2d) 325.

The provisions of chapter 87 does not modify the provisions of this section. American Federation of Labor v. Watson, (Fla.), 31 So. (2d) 394.

[ 34]


Where there are two defendants, etc.-In accord with original see American Federation of Labor v. Watson, (Fla.), 31 So. (2d) 394.

Joinder not authorized.-see also American Federation of Labor v. Watson, (Fla.), 31 So. (2d) 394.

Cited in Wilkins & Co. v. Stoer, 157 Fla. 565, 26 So. (2d) 662.

Applied in Williams v. Bullington, (Fla.), 32 So. (2d) 273.

§ 63.32 HISTORY.

Am. § 3, ch. 22730, 1945.


I. DEMURRERS AND SUBSTITUTE THEREFOR.

A. Generally. Special appearance and motion to quash.-

Under subsection (2) of this section, length and character of residence do not affect jurisdiction over the perso:a, which may be challenged by special appearance and motion to quash, but only jurisdiction over the subject matter. Rollins v. Rollins, 155 Fla. 83, 19 So. (2d) 562.

Lack of residence should be challenged by the answer, where the bill of complaint contains the necessary allegations. Aldrich v. Aldrich, 153 Fla. 856, 16 So. (2d) 47 .

Notwithstanding the provisions of subsection (2) of this section, jurisdiction might be tested by special appearance and sworn motion to quash. Rollins v . Rollins, 155 Fla. 83, 19 So. (2d) 562.

Florida Chancery Act.-Pleas in chancery were abolished and all de

fenses formerly available by plea in bar or abatement were required, after the effective date of the Florida Chancery Act, to be made by answer. Aldrich v. Aldrich, 153 Fla. 856, 16 So. (2d) 47.

When the Chancery Act went into effect pleas in chancery were abolished and all defenses formerly available by plea in bar or abatement were thereafter required to be made by answer. I d.

The motion tests the sufficiency of the allegations of the bill. Safford v. McCasldll, 157 Fla. 133, 25 So. (2d.) 210.

For most practical purposes.-In accord with original see Anderson v. Carlton, 156 Fla. 170, 22 So. (2d) 874.

And admits those well pleaded. Safford v. McCaskill, 157 Fla. 133, 25 So. (2d) 210.

Applied, subsection (2), in Fairlamb v. Fairlamb, 156 Fla. 104, 22 So. (2d) 580.

Cited in Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So. (2d) 438; Petition of Florida State Bar Ass'n, etc. <Fla.). 21 So. (2d) 605, 611.

B. Grounds for Motion and Dlustrative Cases.

The existence of an adequate remedy at law.A bill should not be dismissed because it appears that the plaintiffs have an adequate remedy at law, but the cause should be transferred to the law side of the docket. Fleming v. State Road Dept., 157 Fla. 170, 25 So. (2d) 376.

Motion to dismiss should be denied if there is any equity in the bill. Safford v. McCaskill, 157 Fla. 133, 25 So. (2d) 210; see also Fleming v. State Road Dept., 157 Fla. 170, 25 So. (2d) 376.

If a bill of complaint states any ground upon which equitable relief may be granted it should not be dismissed upon the ground that it contains no equity. Fleming v. State Road Dept. 157 Fla. 170, 25 So. (2d) 373.


I. GENERALLY.

Cited in Petition of Florida State Bar Ass'n, etc., 1'55 F1a. 710, 2'1 So. (2d) 605, 612.

II. ILLUSTRATIVE CASES.

Answers held sufficient.-Where the answer of a judgment creditor in

a foreclosure suit against the mortgagor presented only a claim to funds on hand after the satisfaction of the plaintiff's mortgage, and made no effort to challenge the amounts payable to the mortgagee, the property being twice offered for sale, though not bringing a fair price, the judgment creditor was not harmed by reason of entry of final decree before the suit was at issue. Futch, Inc. v. Miller, 154 Fla. 27, 16 So. (2d) 338.


I. STATING COUNTERCLAIM IN ANSWER.

A. Generally. Substitute for cross bill.-Generally speaking,

the statutory counterclaim under this section should lie under the circumstances that a crossbill would lie under the general equity jurisprudence. Wilkins & Co. v. Stoer, 157 Fla. 565, 26 So. (2d) 662. (con. op.)

Scope.-This proceeding is broad\ and oomprehens·ive in scope and the defendant may assert any matter or thing arising out of ·the transaction . Koretzky v . Singer, (Fla.), 32 So. (2d) 5.

Applied in Tampa Leather Co. v. Smith, 156 Fla. 801, 24 So. (2d) 523.

Cited in Mabry v. Knabb, 151 Fla. 432, 10 So. (2d) 330.

B. Equitable Counterclaims.

Counterclaim must have connection with subject matter of suit.-Where an utterly foreign subject matter is injected into an equity suit by way of counterclaim filed by one defendant against another, the court will strike the pleading upon objections timely filed by any party to the cause, it by no means follows that a chan-

[ 35]


cellor will be held in error for entertaining such a claim when parties make no objection to the procedure and the subject matter is one of equitable cognizance. Wilkins & Co. v. Stoer, 157 Fla. 565, 26 So. (2d) 662.

For although the statute recognizes as a proper counterclaim only one which claims relief against the original plaintiff, or one in which the matters set up affects the original plaintiff's rights, the statutes contains no outright jurisdictional proscription against the injection into the suit by the defendants of an equitable issue between themselves, even though it may be entirely foreign to the subject matter of the bill of complaint, so long as all persons interested, including the chancellor and the plaintiff, are in agreement that the issue should be litigated and decided. Id.

If a counterclaim is made against persons not parties to the suit or against parties not yet served with process or who have been served and are not represented by counsel, process is needed to bring them into court. Lorenz v. Lorenz, 157 Fla. 402, 26 So. (2d) 54.

C. Legal Counterclaims.

Dlustrative case. In an action for separate maintenance where

in defendant by answer denied the material allegations and incorporated a counterclaim in the nature of a cross bill, as provided for by this section, in which he prayed for divorce on the ground of extreme cruelty it was held that in view of the fact that more than six months had elapsed since the master's decree was rendered, the court below was authorized to reopen its decree insofar as the matter of the amount of alimony and the length of time it should be paid was concerned, and to make such modifications as changed conditions might render just and equitable. Burns v. Burns, 153 Fla. 73, 13 So. (2d) 599, 601.

II. PRAYER FOR RELIEF.

Relief must be claimed against original plaintiff.-Under this section a defendant may seek relief against either the original plantiff solely, or against original plaintiff and other persons, regardleis of whether the latter are or are not already parties to the action. But, in either event, in order to maintain a counterclaim, relief must be claimed against original plaintiff or the matters set up must affect original plaintiff'• rights. Hendricks v. Williams, 151 Fla. 538, 9 So. (2d) 923, 925.

§ 63.39 ANNOTATION. Confirmation of decree pro confesso not actually

entered.-In suit to foreclose a mortgage, in which the

holder of a subsequent judgment was made a party, where the final decree recited confirmation of the decree pro confesso, though no decree pro confesso had been entered against the mortgagor, the error, which would have justified

the reversal at the instance of the mortgagor, was not harmful to the judgment creditor. Futch, Inc. v. Miller, 154 Fla. 27, 16 So. (2d) 333.

Amendment of answer.-Where the plaintiff within ten days after the

filing of the answer moves for a decree on the bill and answer, the plaintiff may proceed to trial if the motion is denied. Revision may be allowed if the answer is insufficient but amendable. Futch, Inc. v. Miller, 154 Fla. 27, 16 So. (2d) 338.


The important differences between a hearing under this section and the former hearing on bill and answer are two, namely, (1) that under this act the averments of the bill, with certain exceptions, are deemed to be true unless sufficiently denied in the answer, and (2) a decision for plaintiff or defendant, as the case may be, does not necessarily result in the immediate entry of final decree, but if the motion be overruled plaintiff may proceed to trial, and if it be sustained defendant may amend his answer upon terms. Miami Bridge Co. v. Miami Beach Ry. Co. , 152 Fla. 458, 12 So. (2d) 438, 445.

Motion is not equivalent of hearing on bill and answer.-A motion for decree on bill and answer under this section cannot be considered as the exact equivalent of the hearing on bill and answer under the old chancery practice. Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So. <2d) 438, 444.

But intended to have effect of demurrer at law.-This section is intended to follow the code practice of motion for judgment on the pleadings, and to have the effect of a demurrer at law. Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So. (2d) 438, 444.

When motion properly sustained.-A motion for decree on bill and answers would be properly sustained wherever the answer fails to deny the material allegations of the bill and fails to set up a defense in avoidance. But the motion obviously could not be sustained where the answer sufficiently denies essential allegations of the bill or states a defense in avoidance. Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So. (2d) 438, 445.

Allegations in an answer responsive to the bill on final hearing on bill and answer are accepted as true. Stoltenberg v. Hughes, 154 Fla. 519, 18 So. (2d) 475; Florida Power Corp. v. Tallahassee, 154 Fla. 638, 18 So. (2d) 671.

On a hearing on a bill and answer when the time for taking testimony has expired, every allegation in the answer responsive to the bill of complaint is taken as true if there is only the bill and answer before the court, and if the answer denies all the material allegations in the bill, the issues are made by the denials, and a final decree should be entered against the party having the burden of proof. Stoltenberg v. Hughes, 154 Fla. 519, 18 So. (2d) 475.

[ 36]


Averments of an answer responsive to the bill by way of avoidance must be proven by the dlefendan:t. Florida Bower Oorp. v. 'I1aHahassee, 154 Fla. 638, 18 So. (2d) 671; Stoltenberg v. Hughes, 154 Fla. 519, 18 So. (2d) 475.

A motion for decree on bill and answer should not be sustained where the answer sufficiently denies essential allegations of the bill or states a defense in avoidance. Sullivan v. Givens, 155 Fla. 445, 20 So. (2d) 493.

New matter not responsive to the bill.-See Stoltenberg v. Hughes, 154 Fla. 519, 18 So. (2d)

is a presumption that the chancellor properly exercised his discretion and the burden is upon the appellant to show that the decree ought not to have been vacated. Riens v. Riens, 157 Fla. 118, 25 So. <2d) 79, 80.


Applied in Lorenz v. Lorenz, 157 Fla. 402, 26 So. (2d) 54.

§ 63.47 475. ANNOTATION.

Purchasers were entitled to a decree of specific performance on hearing on bill and answer after time for taking testimony had expired, where allegations were made in the bill that payment was agreed to be made to the vendor on delivery of the contract, and in the answer that vendor signed an agreement for a deed and accepted down payment with understanding that vendor's wife would subsequently sign, which she refused to do, that title was not merchantable and that the minds of the parties had never met were not responsive to the bill. Id.

Where allegations of answer presented new matter not responsive to the bill in a purchaser's suit for specific performance, the allegations of answer that vendor did not sign contract and that it was chancellors duty to dismiss the bill on hearing on bill and answer after time for taking testimony had expired could not be sustained. Id.

Motions for final decree on bill and answer are matters preliminary to trial and not to final hearing. Futch, Inc. v. Miller, 154 Fla. 27, 16 So. (2d) 338.

·Applied in Sebring v. Harder Hall, 150 Fla. 824, 9 so. <2d) 350.


Jurisdiction necessary to enter decree pro confesso.-In order to hold a defendant in default and enter a decree pro confesso against him, the court must have acquired jurisdiction of the cause and of the person of defendant, either by his appearance or by the service of actual or constructive process upon him. State v. Kanner, 152 Fla. 400, 11 So. (2dl 889, 891.

Against whom decree pro confesso may be had. -Decree pro confesso may be obtained against individuals or corporate parties defendant but lands, or other physical property, cannot be charged with disregarding the process of the court; and even persons under disability, such as infants, insane persons, etc., are not as a rule subject to decrees pro confesso. State v. Kanner, 152 Fla. 400, 11 So. <2d) 889, 891.


Stated in part in Storm v. Houghton, 156 Fla. 793, 24 So. (2d) 519.


Cited in Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So. (2d) 438.


II. MOTION AND RULINGS THEREON.

In a class suit by preferred stockholders of gas company for an accounting, motion of complainants to require defendants to produce certain books, records and papers on nothing more than a mere suspicion that they contained evidence pertinent to the cause of action, was denied. Gribbel v. Henderson, 154 Fla. 78, 16 So. (2d) 639.


The master is a highly important and responsible officer of the court, acting for and under the appointment of the court, and vested with considerable authority of a judicial nature by the statutes, and usually also by the order of the court appointing him. Burns v. Burns, 153 Fla. 73, 13 So. (2d) 599, 602.


In Burns v. Burns, 153 Fla. 73, 13 So. (2d) 599, 602, it was held not unreasonable "that a master appointed by the court to hear the evidence and report it back to the court together with his conclusions on the facts, as well as the law, may comment on the demeanor and conduct of the witnesses where, in his opinion, these elements affected the degree of credibility which would be accorded to their testimony."


Cited in Burns v. Burns, 153 Fla. 73, 13 So. (2d) 599.

§ 63.57 On review by the Supreme Court of an order ANNOTATION.

vacating a decree · pro confesso and final decree, Cited in Burns v. Burns, 153 Fla. 73, 13 So. even after the same has become absolute, there <2d) 599.

[ 37]





The master should not hear evidence upon issue not made by the pleadings and if his report goes beyond matters referred to him, it is to that extent a nullity. Burns Y. Burns, 153 Fla. 73, 13 So. (2d) 599, 602.

Cited in Feuer v. Feuer, 156 Fla. 117, 22 So. (2d) 641.








Cited in Burns v. Burns, 153 Fla. 73, 13 So.

absence of notice was not harmful and reversal on that account is not justified. Williams v. Smith, 149 Fla. 735, 6 So. (2d) 853, 854.

Under this section the court is required to confirm the master's report in the absence of exceptions, but he must hear any exceptions upon reasonable notice. Feuer v. Feuer, 156 Fla. 117, 22 So. (2d) 641.

Where the record does not reveal notice of filing the master's report or its express or implied waiver and a final hearing is held without notice, the decree must be reversed. Id.

Cited in Burns v. Burns, 153 Fla. 73, l:cl So. (2d) 599.

§ 63.66 HISTORY.

Am. § 7, ch. 22858, 1945.

ANNOTATION. Briefly worded findings of fact and statement

of controlling conclusions of law of the trial court in a decree are not mandatory, but they serve as a guide by w:hich the supreme court can chec·k the correctness of the findings of fact and legal conclusions of the chancellor. Bullock v. Harwick, 158 Fla.. 8·34, 30 So. <2d) 539.



§ 63.70 (2d) 599. ANNOTATION.


The report of a special master is only advisory to the chancellor who is not bound to follow the conclusions of law or fact of the special master, or his recommendations. Burns v. Burns, 153 Fla. 73, 13 So. (2d) 599, 601.

Where the evidence is conflicting and there is substantial evidence to support the chancellor's findings and decree, the same will not be set aside where it has not been made to appear that the chancellor's conclusions and decree were clearly erroneous. Id.


When the cause reached issue the court appointed a special master to take the testimony within thirty days, but no authority was given him to make findings. The thirtieth day from the date of the order, testimony was introduced by defendants (appellees) in the presence of c~.ppellant husband, who represented his wife and himself. He offered no testimony. The notice required by this section should be served even though the master is not empowered to make findings; however, in the above circumstances

Petitions for rehearing are addressed to the sound discretion of the chancellor, etc.

In accord with original. See Hollywood v. Clark, 153 Fla. 501, 15 So. (2d) 175.

Cited in De Bowes v. De Bowes, 149 Fla. 545, 7 So. <2d) 4.


The purpo~ of this section is to prevent the use of a petition for rehearing as an automatic stay of proceedings for thirty days, which is permitted by the existing statute, and to require an order of court before any petition for rehearing shall operate as a stay. Hollywood v. Clark, 153 Fla. 501, 15 So. (2d) 175, 183.

Effect of filing petition for rehearing.-Where the court's decree grants no affirmative relief and is self-executing and there are no proceedings for a stay order to operate upon, there is manifestly nothing to stay, and the timely filing and presentation of a petition for rehearing under § 63.70 suspends the final decree until the petition is disposed of. Hollywood v. Clark, 153 Fla. 501, 15 So. (2d) 175, 183.

Cited in De Bowes v. De Bowes, 149 Fla. 545, 7 So. <2d) 4.

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1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941 § 65.0Z

§ 63.73 Cited in Miami Bridge Co. v. Miami Beach Ry.

Co., 152 Fla. 458, 12 So. (2d) 438; Cassara v. Wofford, <FLa.), 28 So. (2d) 904.


Cited in Cassam v. Wofford, (Fla.), 28 So. (2d) 904.


Where declaration voluntarily filed after transfer of cause.-Where judge ordered a cause transferred from chancery to common law and the bill of complaint was not relied upon to state the case but plaintiff without being ordered to do so filed a declaration, it was held that the latter should be considered the initial pleading in the action culminating in the judgment under consideration. Hunter v. Tyner, 151 Fla. 707, 10 So. (2d) 492, 493.

Detennination of pleadings filed after transfer of cause.-Where judge ordered a cause transferred from chancery to common law whereupon appellant filed a declaration, it was held that the validity of the pleadings in the common-law suit should be determined from the pleadings themselves and that appellant could not rely on the allegations of the bill of complaint originally filed in the chancery suit to establish the sufficiency of the declaration subsequently lodged in the common-law court. Hunter v. Tyner, 151 Fla. 707, 10 So. (2d) 492, 493.

Transfer of case.-A bill should not be dismissed because it appears that the plaintiffs have an adequate remedy at law; the cause should be transferred to the law side of the docket and pleadings be recast for disposition of the cause in a court of law. Fleming v. State Road Dept., 157 Fla. 170, 25 So. (2d) 373.

Applied in Workingmen's Cooperative Bank v. Walliace, 15:1 FLa. 329, 9 So. (2d) 731; Johnson v. Killian, 157 Fla. 754, 27 So. (2d) 345.

Cited in Edmun Realty Corp. v. Kearns, 158 Fla. 558, 28 So. (2d) 834.


It is only when a decree pro confesso is entered that no notice of any motion, hearing or any other proceeding shall be required. Feuer v. Feuer, 156 Fla. 117, 22 So. (2d) 641.

CHAPTER 64.

Injunctions.




I. GENERALLY.

A place of business where liquor is sold is not a nuisa,nce per se. Rivkind v. State, (Fla.), 32 So. (2d) 330.

Applied in State v. Sullivan, 157 Fla. 496, 26 So. (2d) 509; Federal Amusement Co. v. State, <Fla.), 32 So. (2d) 1.

Cited in Giblin v. State, 158 FJ.a. 490, 29 So. (2d) 18.

II. SUIT BY PRIVATE CITIZEN.

The suit is in effect one instituted in behalf of the public.-In accord with original see Losey v. State, 158 Fla. 381, 28 So. (2d) 604 (dis. op.).


Quoted in part in State v. Sullivan, 157 Fla. 496, 26 So. (2d) 509; Losey v. State, 158 FLa. 381, 28 So. (2d) 604.

CHAPTER 65.

Divorce, Alimony and Custody of Children.


Proof of residence, though indispensible to a divorce decree, is not essential to the acquisition of the subject matter of divorce by the court. Aldrich v. Aldrich, 153 Fla. 856, 16 So. (2d> 47.

The divorce statute of this state requires not that residence be proved preliminarily as a condition to proceeding with a suit for divorce but only that proper proof of residence be made as a condition to obtaining the final decree. Id.

Burden of proving residence.-Complainant in divorce suit has burden to prove that he had resided in the state ninety days before filing bill of complaint. Mills v. Mills, 153 Fla. 746, 15 So. (2d) 763.

In a divorce suit, the burden of establishing the right to maintain suit was on the wife, where the husband appeared specially and moved to dismiss suit on ground that wife had not acquired legal residence in the state. Aldrich v. Aldrich, 153 Fla. 856, 16 So. (2d) 47.

Proof of residen~ established.-Proof of residence of plaintiff in Florida held sufficiently established. Gershowitz v. Gershowitz, 152 Fla. 589, 12 So. (2d) 463.

There must be a Florida "residence".-This section contemplates the establishment of a residence in the State of Florida as differentiated from a visit or temporary residence for a period of 90 days. Fowler v. Fowler, 156 Fla. 316, 22 So. (2d) 817.

Which is a question of law and fact.-Resident within the meaning of this section is both a

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question of law and fact to be settled or determined from the facts of each particular case. Fowler v. Fowler, 156 Fla. 316, 22 So. (2d) 817.

A resident as used in this section is one who lives at a place with no present intention of removing therefrom. Id.

Pretended establishment of residence in Florida for the purpose of procuring a divorce under the laws of the State was not sufficient to comply with the requirements of this secti.on. Fairlamb v. Fairlamb, 156 Fla. 104, 22 So. (2d) 580.

Testimony insufficient to establish prere<;~uisite residence. Feuer v. Feuer, 156 Fla. 117, 22 So. (2d) 641.

The provisions of this section are inapplicable to suits by a wife for alimony under the provisions of §65.09. Schwenik v. Schwenik, (Fla.), 32 So. (2d) 734. .

Cited in Weinstein v. State, 151 Fla. 287, 9 So. (2d) 710 (dis. op.).


Dower rights, being inchoate, are extinguished by divorce decree ·at the instance O!f eitlher party. Bowler v. Bowler, (Fla.), 31 So. (2d) 751.



Cross reference.-See annotation under supreme court rule 38 as to properly certified question in divorce action based on divorce ground recited in paragraph eight of this section.

Purpose of section.-It is the purpose of this statute to grant relief

to the innocent party, even though the effect of a decree of divorce in Florida is to release both parties from the bonds of matrimony. Sahler v. Sahler, 154 Fla. 206, 17 So. <2d) 105.

Innocent party alone may sue.-This statute leaves no doubt that it is con

templated that the innocent party alone shall sue for and be awarded a decree of divorce. Sahler v. Sahler, 154 Fla. 206, 17 So. (2d) 105.

Incompatibility of temperament is not a statutory ground for divorce in this State. Sahler v. Sahler, 154 Fla. 206, 17 So. (2d) 105.

"Naturally impotent," as used in this section means absence of the power to copulate. If the power to copulate is present the possessor is not impotent though he may or may not have the power to procreate. Gibbs v. Gibbs, 156 Fla. 404, 23 So. (2d) 382.

Section not to be interpreted so as to cause relitigation of foreign divorces.-A literal interpretation of this section, which might require that when an absolute divorce is granted to a complainant in another state and defendant in that case becomes complainant in a divorce suit brought in this state against complainant in the

former suit, complainant here would be entitled to prevail, does not comport with reason and justice and would sanction the relitigation of divorce proceedings long settled by final decrees of courts of competent jurisdiction. Keener v. Keener, 152 Fla. 13, 11 So. (2d) 180, 181.

When foreign divorce entitled to full faith and credit.-If the foreign divorce is valid in the state where secured, it will be recognized under the full faith and credit provision of the Federal Constitution and may not be the basis for divorce in this state. If on the other hand jurisdiction of defendant was not acquired or the divorce is not effective as to both parties or is for other reasons invalid, then a complainant in this state would not be bound by it and would be in position to invoke the provisions of this section to be relieved from it. Keener v. Keener, 152. Fla. 13, 11 So. (2d) 180, 181, citing Williams v. North Carolina, 317 U. S. 287, 63 S. Ct. 207, 87 L. Ed. 279, 143 A. L. R. 1273.

Duty of court to grant divorce.-If the court has jurisdiction of the parties and the subject matter of the litigation, and the evidence shows the existence of the ground for divorce and it is one recognized by this section and no other lawful reason exists why a divorce should not be granted, it then becomes the duty of the court to grant the decree. Engebretsen v. Engebretsen, 151 Fla. 372, 11 So. (2d) 322, 326. See Mitchell v. Mitchell, 91 Fla. 427, 107 So. 630.

Effect of alleging several grounds for divorce. -Where the bill of complaint charged: (1) extreme cruelty; (2) an ungovernable temper; and (3) desertion for a period of more than one year, it cannot be successfully contended on appeal that the failure of the decree to recite the exact ground or grounds upon which the divorce was granted was error. Bagwell v. Bagwell, 153 Fla. 471, 14 So. (2d) 841, 842.

Effect of divorce obtained in Georgia court.The judgment entered in divorce a.ction by Georgia court operates as an estoppel in the second suit only as to every point and question that was actually litigated and determined in the Georgia court. Bagwell v. Bagwell, 153 Fla. 471, 14 So. (2d) 841, 843.

Applied in Sauer v. Sauer, 154 Fla. 827, 19 So. (2d) 247.

ll. ADULTERY.

Proof of adultery. Adultery is seldom or rarely established by

direct testimony. The natural secrecy of the act makes or ordinarily renders it impossible to establish it except by circumstantial evidence. The facts and circumstances as disclosed by the evidence supporting the charge of adultry in a divorce proceeding must be such as to lead the guarded discretions of a reasonable and just man to the conclusion that adultery was committed. Engebretsen v. Engebretsen, 151 Fla. 372, 11 So. (2d) 322, 326.

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1947 CUMULA~IVE SUPPLEMENT TO VOLUME ll, FLORIDA STATUTES, 1941 § 65.04

Ill. EXTREME CRUELTY.

Extreme cruelty as ground for divorce is relwtive. In accord with original. See Baldwin v. Bald

win, 151 Fla. 341, 9 So. (2d) 717, 720.

Depending upon the facts and circumstances. In accord with original. See Baldwin v. Bald

win, 151 Fla. 341 ," 9 So. (2d) 717, 720.

And may be mental as well as physical. Cruelty warranting divorce need not be ac

tually bodily harm but may be a course of conduct calculated to torture complaining spouse's mental or emotional nature and affecting her bodily health.' Baldwin v. Baldwin, 151 Fla. 341, 9 So. (2d) 717, 720.

The question for the alleged offending spouse to determine is, not whether or not the alleged conduct should result in the infliction of pain and suffering, but is whether or not in fact such conduct does or reasonably may have that result and effect on the other spouse, and if it does, then such spouse continues in the indulgence ·in that conduct at his or. her peril of destroying and bringing to an end the marital relation. Baldwin v. Baldwin, 151 Fla. 341, 9 So. (2d) 717, 721:

Where conduct knowingly and continuously pursued.-When a spouse knowingly and continuously indulges in conduct knowing that the same causes his or her spouse to suffer extreme mental or physical pain and anguish, such spouse is guilty. of cruelty. Baldwin v. Baldwin, 151 Fla. 341, 9 So. (2d) 717, 721.

But offending spouse believes there is a right to pursue such course.-The overt or affirmative act deliberately committed by one spouse toward the other with the knowledge on the part of the actor that such act will cause the other spouse great mental pain and suffering may constitute extreme cruelty, although the spouse committing such act may honestly believe that he or she has the right to pursue such course. Hahn v. Hahn, 153 Fla. 584, 15 So. (2d) 292.

C1-uelty in Georgia and Florida similar.-The cruel treatment provided for in the Georgia code, and the extreme cruelty recognized by the Florida laws as ground for divorce are similar. Bagwell v. Bagwell, 153 Fla. 471, 14 So. (2d) 841, 842, recognizing proceedings of Georgia court.

Any :habitual indulgence on the part of one spouse, etc.-In accord with original see Garland v. GM"land, 1581 Fl•a. 643, 29 S.o. (2d) 693.

Bills of complaint held sufficient. See Baldwin v. Baldwin, 151 Fla. 341, 9 So.

(2d) 717, 721.

Evidence sustaining divorce on grounds of cruelty.

Evidence sufficient for granting divorce under subsection (4) of this section. Parsons v. Parsons, 154 Fla. 299, 17 So. (2d) 223.

See Hahn v. Hahn, 153 Fla. 584, 15 So . . (2d) 292; Warren v. Warren, 153 Fla. 704, 15 So. (2d)

606; Gershowitz v. Gershowitz, 152 Fla. 589, 12 So. (2d) 463; Engebretsen v. Engebretsen, 151 Ji"la. 372, 11 So. (2d) 322.

In order to warram.t the groun.d of extreme cruelty, the marriage relation must be shown to h ave been defeated by grave and serious misconduct and this should be established by competent evidence of f.un and. satisfactory nature. Garland v. Garland, 158 Fla. 643, 29 So. (2d) 693.

Cruelty, to constitute a ground for divorce, must consist of some act of commission or omission by the defendant to the plaintiff and cannot exist by r·eason of some accident foc which t'he defend&nt has been in no way responsible. Weinstein v. Weinstein, 158 Fla. 566, 28 So. (2d) 822.

V. HABITUAL INTEMPERANCE.

In a suit for divorce on the ground of habitual intemperance, evidence was sufficient to support plaintiff's allegations of statutory residence and the grounds relied on for divorce. Kirby v. Kirby, 154 Fla. 701, 18 So. (2d) 754.

VI. DESERTION.

Three elements of abandonment must be established by the evidence to warrant a divorce under this section, that is, willfulness, obstinateness and continuedness "for one year." Young v. Young, 152 Fla. 712, 12 So. (2d) 885, 886.

Vested right to divorce on grounds of desertion.-Once the statutory ground for divorce because of desertion has occurred, the right to divorce becomes vested and it cannot be taken from the injured party except by his own act. Anders v. Anders, 153 Fla. 54, 13 So. <2d) 603, 604.

Adjudication as to separate maintenance not res judicata as to desertion.-An adjudication in separate maintenance suit is not res judicata in a proceeding for divorce on the ground of desertion, for in the latter case the desertion must have existed for a period of one year, whereas in the former there is no required time limit. Anders v. Anders, 153 Fla. 54, 13 So. (2d) 603, 604.

Where desertion began and ended on advice of counsei.-In action for divorce on grounds of desertion, the fact that the wife acted in the best of faith on advice of her counsel in remaining away will not preclude husband from obtaining a divorce, neither will wife's plea be stronger because she insisted on returning and remaining in the home on advice of counsel after the period of one year for desertion had run. Anders v. Anders, 153 Fla. 54, 13 So. (2d) 603, 604.

Computation of time elapsing between desertion charged and filing bill of complaint.-See Young v. Young, 152 Fla. 712, 12 So. <2d) 885.

VIII. HUSBAND OR WIFE LIVING AT TIME OF MARRIAGE ..

Bigamous ceremony has some requisites of ma.rital status.-Inasmuch as the legislature

[ 41]


made paragraph nine a ground for divorce, it expressly recognized that the ceremony possessed some requisites of a marital status. Todd v. Todd, 151 Fla. 134, 9 So. (2d) 279.


Applied in Fowler v. Fowler, 156 Fla. 316, 22 So. (2d) 817.

§ 65.07 ANNOTATION. This section applies to all grounds for divorce.

Todd v. Todd, 151 Fla. 134, 9 So. (2d) 279.

Costs and attorney's fee in petition in nature of bill of review.-Under this and the two following sections husband was ordered to pay an attorney's fee in the sum of $500 to wife and her counsel of record, and likewise all costs incurred in the prosection of a petition in the nature of a bill of review by wife to set aside and annul a final decree of divorce previously entered · in so far as decree failed to provide permanent alimony, support and an interest of wife in property appearing in the name of husband. Miller v. Miller, 149 Fla. 722, 7 So. (2d) 9, 12.

§ 65.08 HISTORY.

Am. § 1, ch. 23894, 1947.

ANNOTATION. As to allowance to wife of solicitor's fees for

services rendered prior to reconciliation of the husband and the wife, see Baldwin v. Baldwin, 154 Fla. 624, 18 So. (2d) 681.

The only class barred absolutely from alimony is the adul~rous wife.

Under this section an adulterous wife is not entitled to alimony. Engebretsen v. Engebretsen, 151 Fla. 372, 11 So. (2d) 322, 333 (dis. op.).

Harmless attempt to defraud husband.-Under this section an attempt on the part of a wife to defraud her husband in a property transaction, but wife obtaining no financial benefit from the attempt, and no harm resulting to husband, does not amount to a forfeiture of her rights to alimony in divorce action. Borden v. Borden, 156 Fla. 770, 23 So. (2d) 529.

Applied in Knox v. Knox, (Fla.), 31 So. (2d) 159; Brunner v. Brunner, (Fla.), 32 So. (2d) 736.


Residence statute inapplicable.-The ninety day residence period prior to filing suit for divorce as :required: by §65.02, is inapplicable to suits by a wife for alimony filed under this sect ion. Schwenik v. Schwenik, (Fla.), 32 So. (2d) 734.

Living apart from husband.-Where wife continued to live with husband in ihouse owned by the entireties after last act of cruelty, but had separate rooms, did not eat together, and had

discontinued all cohabitation, did not constitute living together as contemplated by this section. Randall v. Randall, 158 Fla. 502, 29 So. (2d) 238.


Estoppel to go behind decree.-Where wife absented herself from the home and made an issue of who was at fault for the separation in suit for separate maintenance under this section and the issue was concluded adversely to her, she was held estopped to go behind that decree and show that the husband was responsible for the separation in husband's action for divorce for desertion. Anders v. Anders, 153 Fla. 54, 13 So. (2d) 603, 604.

In order for a suit tG be maintained under this section, the husband must be able to maintain or to contribute to t'he support of his family and fail, but if the husband at the time of the institution of the suit is not withholding support, commensurate with the financial condition and circlllThStances of the parties, the action is not maintainable. Close v. Close, 158 Fla. 636, 29 So. (2d) 625.

Stated in Craig v. Craig, 157 Fla. 710, 26 So. (2d) 881.


Allotments for alimony are not liens.-In Lorenz v. Lorenz, 157 Fla. 402, 26 So. (2d) 54, the court applied the rule that allotments for alimony are not liens because indeterminate and subject to adjustment, but may become judgments if after default a competent court determines and adjudges the amount then due as set out in Robinson v. Robinson, 154 Fla. 464, 18 So. (2d) 29.

Stated in part in Craig v. Craig, 157 Fla. 710, 26 So. (2d) 881.


This statute is not confined in its operation to public officers, etc; see Robinson v. Robinson, 154 Fla. 464, 18 So. (2d) 29.

One seeking to enforce allowances for alimony and suit money under the statute extending the remedy of garnishment in such cases must comply with the statutes regulating writs of garnishment before and after judgment applying to allowance for alimony and judgment for fees and costs. Robinson v. Robinson, 154 Fla. 464, 18 So. (2d) 29.

It doos not furnish a comprehensive, independent methoo of ga.ntishment, .but on:Iy extends the remedy to certain cases and certain salaries. It is necessary to look elsewhere in the laws of the state to determine the steps which must be taken to obtain advantage of the remedy, and these are found in §§ 77.03 and 77.18. Robinson v. Robinson, 154 Fla. 464, 18 So. (2d) 29.

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Its purpose was to extend the remedy of garnishment to cases arising from the noncompliance with orders for the payment of alimony and suit money and to impound moneys due public officials. Robinson v. Robinson, 154 Fla. 464, 18 So. (2d) 29.

§ 65.14 ANNOTATION. In general.-

The custody and welfare of a child or children of divorced parents can and may be inquired into on application to a court of competent jurisdiction when appropriate orders can or may be entered. Sauer v. Sauer, 154 Fla. 827, 19 So. (2d) 247.

Award of custody of child not disturbed unless clearly wrong.-The Supreme Court would not disturb a rul

ing of the lower court involving the question of whether the chancellor abused his judicial discretion in awarding the custody of children to the mother, in the absence of a clear showing to the contrary. Vinson v. Vinson, 154 Fla. 393, 17 So. <2d) 695.

An exception to the natural parent child custody rule was made in the decision of the Supreme Court denying a father the custody of his minor son as against the boy's maternal grandparents who had reared him from infancy. Hart v. Howell, 154 Fla. 878, 19 So. (2d) 317.

Thus, where the parents of a minor child at the time of its birth released the custody of it to the maternal grandparents who assumed all responsibility for its upbringing for about nine years during which time the father rarely visited it and the mother died, the custody of the child would not be changed upon the petition of the father who had remarried. Id.

Habeas corpus is the proper remedy to obtain custody of a minor child. Trotman v. Thomas, 154 Fla. 71, 16 So. (2d) 640.

Change in circumstances of parties must warrant modification of decree.-When entering a decree modifying a former final custodial decree it must appear that a change in the conditions or circumstances of the parties, or SJt least one of them, warrants such change. Belford v. Belford, (Fla.), 32 So. (2d) 312.

Cited in Guinta v. Lo Re, (Fla.), 31 So. (2d.) 704 (dis. op.); New York v. Halvey, (U. S.), 91 L. Ed. 793.

Applied in Fowler v. Fowler, 156 Fla. 316, 22 So. <2d) 817.


Ancillary proceedings quasi in rem.-Where petitioner in proceedings for modification of agreed provisions for alimony was a party to the divorce-alimony decree rendered, it was held that this section authorized the application made in the case for ancillary proceedings quasi in rem and binding res being within the juris-

diction of the court, service of notice by publication was authorized by § 48.01, and no applicable Federal law was violated by such service of notice. Cohn v. Cohn, 151 Fla. 547, 10 So. (2d) 77, 81, 143 A. L. R. 428.

Transportation to attend hearing on modification of decree.-In an action by a divorced wife for substantial increase in the amount of allotment to her for care of infant children it was held that an assessment against husband for wife's transportation from New York to Florida, and return, to attend hearing and for board and lodging while in the state for that purpose was improper. Slade v. Slade, 153 Fla. 125, 13 So. (2d) 917, 918.

Burden on one seeking to have order modified. -A husband seeking to have modified an order for separate support and maintenance, has not only the burden of showing to the court that it was beyond his capacity to make the payments required by the final decree, but he has also to show the court just what his capacity to support his wife and family was or would be, so that the court, under this section, may "make such order and judgment as justice and equity shall require." Fleischer v. Fleischer, 149 Fla. 621, 6 So. (2d) 836, 837.

Slight change of conditions do not warrant a modification of a decree. Slade v. Slade, 153 Fla. 125, 13 So. (2d) 917, 919.

Nor is the remarriage of a divorced husband. Divorced husband was not entitled to reduc

tion of alimony because of increased living expenses caused by a subsequently contracted marriage. De Bowes v. De Bowes, 152 Fla. 423, 12 So. (2d) 118, 119.

And is not applicable to past due installments.-A decree for the payment of alimony will not

be vacated unless the petitioner has paid up ·all alimony due under such decree, or by his petition shows his inability to do so. Blanton v. Blanton, 154 Fla. 750, 18 So. (2d) 902.

Discretion of chancellor.-Applications for modification of awards of

alimony and support money are matters in which the chancellor may exercise a large discretion. Blanton v. Blanton, 154 Fla. 750, 18 So. <2d) 902.

Fraud, deceit, etc.-Courts of equity have the power and juris

diction to grant relief and set aside and annul judgments and decrees obtained by fraud, deceit, artifice or trickery. Gross v. Gross, 154 Fla. 649, 18 So. (2d) 538.

Agreements made in good faith, free from fraud, deceit or trickery relating to alimony between husband and wife, or the adjustment o.f their property rights, though made in contemplation of divorce, can or may be sustained or upheld by the courts. Id.

The approved procedure for obtaining an order or decree vacating, setting aside, or annulling a final decree, entered by a court of chancery, regular upon its face, and alleged to

[ 43 l

§ 65.16 1947 CUMULATIVE SUPPLEMENT TO VOLUME D, FLORIDA STATUTES, 1941

have been obtained by fraud, deceit, artifice or trickery, or other unlawful means, was a bill of complaint rather than an oral motion or petition for the issuance of a rule nisi to show cause. Id.

Change in earnings of divorced husband did not warrani evicting his former wife from the occupancy of property which was awarded her, according to the language of the final divorce decree, · "in lieu of a larger alimony award." De Bowes v. De Bowes, 152 Fla. 423, 12 So. (2d) 118, 120.

Divorced husband's impending induction into military service in the near future did not authorize modification of alimony decree. De Bowes v. De Bowes, 152 Fla. 423, 12 So. (2d) 118, 119.

Husband's induction into army.-As to reduction of payment to wife for child's

support after husband's induction into the army, see Blanton v. Blanton, 154 Fla. 750, 18 So. (2dJ 902.

Modific'ation held authorized.-For years the husband had made a substantial

salary as an accountant, but owing to ill health his earnings had been curtailed. The wife enjoyed excellent health and was also capable of skilled work. She also owned some property in her own right. The Supreme Court held that the wife was more than able to pay her attorney's fee, and was therefore not entitled to an allowance for the same. Dempsey v. Dempsey, 154 Fla. 728, 19 So. (2d) 52.

Receipt of legacy as justifying substantial increase in aJiotment.-Where the income of the father fluctuated somewhat but there was little variation in the amounts earned by him in the past three years; in fact , it had progressively decreased in small degree, it was held that the receipt of a legacy after the entry of the final decree would not justify a substantial increase in the amount of allotment to the wife for care of the children where the sum which could be earned on the legacy would not enhance his income to an appreciable extent. Slade v. Slade, 153 Fla. 125, 13 So. <2dl 917, 919.

Passage of time as regards very youthful children.-Where infant children are extremely youthful the passage of time, in itself, is a circumstance that hardly need be considered in an action under this section. Slade v. Slade, 153 Fla. 125, 13 So. (2li) 917, 919.

Under this section strong evidence (or showing) is required to modify divorce decree which is predicated upon agreement between parties involved. Webber v. Webber, 156 Fla. 396, 23 So. (2d) 388.

UndeT this section, the supreme court has authority to modify alimony allowances, whetheT based on stipulation and decree or upon decree that ·rests solely on testimony. Fowler v. Fowler, <Fla.), 31 So. (2d) 162.

Increases of financial liabilities.-'-Under this section increased financial liabilities resulting

from a divorced man's subsequent marriage are insufficient to authorize modification of divorce decree. Webber v. Webber, 156 Fla. 396, 23 So. (2d) 388.

Support of minor children.-Where wife received a monthly amount, based on husband's income, pursuant to a separation agreement which was adopted ;by f•inal decree of divorce, wife was estopped by terms of contract and final decree from having allowance increased in her own behalf, but was granted a $30.00 per week increase in allowance for support of children, since husband could not impair his obligation to support his minor children. Lee v. Lee, l!i7 26 So. (2d) 177; see aJro Stanley v. Stanley, 158 Fla. 402, 28 So. (2d) 694.

§ 65.16 HISTORY.

Camp. §§ 1-3, ch. 21881, 1943. Omitted, see § 7, ch. 22858, 1945.

ANNOTATION. Purpose of section.-

It was not the primary purpose of the act to regulate proceedings fixing alimony and custody, long since recognized and sanctioned by the courts, but to vest authority in the courts to tax suit money and counsel fees. Chiapetta v. Jordan, 153 Fla. 788, 16 So. (2d) 641.

The intent of the Legislature was to make the remedy available under this section in all events where changes in circumstances justified the chancery court in reviewing and readjusting alimony allowances and relationships between divorced parents and their children. Id.

Where a divorced wife, before the effective date of the act, appealed by certiorari fr.om an order modifying provisions of a divorce decree, by which she was awarded custody of a minor child, she could not avail herself of the advantages of the act. Id.

The use of the word "cases" in subsection 3 was construed by the court to be synonymous with "supplementary proceedings," so that the provisions of this subsection would simply provide that in proceedings of this character, pending or brought in the future, the benefits of the act will be available to all parties. Chiapetta v. Jordan, 153 Fla. 788, 16 So. (2d) 641.

The approved procedure for obtaining an order or decree vacating, setting aside, or annulling a final decree, entered by a court of chancery, regular upon its face and alleged to have been obtained by fraud, deceit, artifice or trickery, or other unlawful means, is by bill of complaint rather than a motion to set aside the final decree and open up the case. Sauer v. Sauer, 154 Fla. 827, 19 So. (2d) 247.

Cited in Lechner v. Lechner, 154 Fla. 114, 16 So. (2d) 816.

§ 65.17 HISTORY.

Camp. § 1, ch. 22676, 1945.

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CHAPTER 66.

Chancery Jurisdiction Over Property


Suit by remaindermen.-Plaintiff had no right to maintain a bill of complaint for partition under this section where parties to suit were remaindermen with -life estate outstanding in a third person. Weed v. Knox, 157 Fla. 896, 27 So. (2d) 419.

In Hobbs v. Frazier, 56 Fla. 796, 47 So. 929, 930, 20 L.R.A. <N.S.) 105, 131 Am. St. Rep. 179, 16 Ann. Cas. 558, the court said: "Joint tenants have unity of interest, title, time and possession. Tenants in common may have unity of possession only. Coparceners derive their title by inheritance." Id.


Cited in Griffin v. Bolen, 149 Fla. 377, 5 So. (2d) 690.


I. GENERALLY.

General scope.-This section authorizes a bill in equity to be brought and prosecuted to a final decree· by any person or corporation, whether in actual possession or not, claiming title, legal or equitable, to real estate, against any person or corporation not in actual possession, who has, appears to have , or claims an adverse estate , interest, or claim, legal or equitable, therein, for the purpose of determining such estate, interest or claim and quieting or removing clouds from the title to such real estate. June Sand Co. v. Devon Corp., 156 Fla. 519, 521, 23 So. (2d) 621.


One who purchased property from a purchaser at a tax foreclosure sale, and accepted title without examination of the record or an opinion of counsel, although he had in his possession an abstract of title which would have revealed that tax certificate was invalid because of the defective service by publication on original owner was not purchaser for value without notice and was not entitled to quiet title against such owner. Davock v. Whealen, 156 Fla. 670, 24 So. (2d) 46.


It is no longer necessary for complainant to allege possession in a suit for the cancellation of deeds and other instruments affecting title to land and for other relief under this section. Griffin v. Bolen, 149 Fla. 377, 5 So. (2d) 690, 691.

Waiver of jury triaJ.-The failure to ask for a trial by jury under this section waives any right

under the constitution to a jury trial. Griffin v. Bolen, 149 Fla. 377, 5 So. (2d) 690, 692.

§ 66.20 HISTORY.

Am. § 1; ch. 24293, 1947.


Cited in Gore v. General Properties Corp., 149 Fla. 690, 6 So. (2d) '837, 141 A. L. R. 476.

§ 66.26 HISTORY.

Camp. § 1, ch. 21822, 1943.

ANNOTATION. Section is constitutiona.I.-Beebe v. Richard

son, 156 Fla. 559, 23 So. (2d) 718.

It enlarges jurisdiction of court.-This section enlarged the field in which the circuit court, in the exercise of its equity jurisdiction to quiet titles, may operate. Beebe v. Richardson, 156 Fla. 559, 23 So. (2d) 718.

In: ·ruttempting to confer jurisdiotioo upon the chancery court, under this section, it is the legislative purpose to place such jurisdiction in the circuit courts-the remedy, though statutory in nature, to be pursued in conformance with prescribed modes and methods of equity procedure and practice. Id.

Interested parties may be heard.-Under this section, all persons claiming an interest in the land involved by reason of the former record title are given an opportunity to come into the suit and present defenses in opposition to the establishment and confirmation of the tax title. Beebe v. Richardson, 156 Fla. 559, 23 So. (2d) 718.

And principle of estoppel operates.-This section provides that when parties have had their day in court, an adjudication against them estops them thereafter . from questioning the validity of the tax title or the antecedent proceedings upon which it is based. Beebe v. Rich"trdson, 156 Fla. 559, 23 So. (2d) 718.

Through this section the holder of a tax title and his successors in interest are given a remedy which, when properly pursued, will set at rest potential claims of · the former owner and lien holders that may arise to harass the new title. Id.

This section enables the holder of the tax deed and his successors in interest to bar and foreclose the interest of the original owner of the land and lien holders, thereby stablizing tax titles and enhancing the market value of the new found title to the property. Id.

Cited in June Sand Co. v. Devon Corp., 156 Fla. 519, 521, 23 So. <2d) 621.

§ 66.27 HISTORY.

Comp. § 2, ch. 21822, 1943.

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ANNOTATION. In attempting to confer jurisdiction upon the

chancery court under this section, it is the legislative purpose to place such jurisdiction in tlu:l circuit courts-the remedy, though statutory in nature, to be pursued in conformance with prescribed modes and methods of equity procedure and practice. Beebe v. Richardson, 156 Fla. 559, 23 So. (2d ) 718.

Cited in June Sand Co. v. Devon Corp., 15fl Fla. 519, 521, 23 So. (2d ) 621.

§ 66.28 HISTORY.

Comp. § 1, ch. 24099, 1947.

§ 66.29 HISTORY.

Comp. § 2, cll. 24099, 1947.

§ 66.30 HISTORY.

Comp. § 3, ch. 24099, 1947.

§ 66.31 HISTORY.

Comp. § 4, c.h. 24099, 1947.

§ 66.32 HISTORY.

Comp. § 5, ch. 24099, 1947.

§ 66.33 HISTORY.

Comp. § 6, ch. 24099, 1947.

§ 66.34 HISTORY.

Comp. § 7, ch. 24099, 1947.

§ 66.35 HISTORY.

Comp. § 8, ch. 24099, 1947.

§ 66.36 HISTORY.

Comp. § 9, ch. 24099, 1947.

§ 66.37 HISTORY.

Comp. § 10, ch. 24099, 1947.

§ 66.38 HISTORY.

Comp. § 11, ch. 24099, 1947.

§ 66.39 HISTORY.

Oomp. § 12, ch. 24099, 1947.

§ 66.40 HISTORY.

Comp. § 13, ch. 24099, 1947.

§ 66.41 HISTORY.

Comp. § 14, ch. 24099, 1947.

§ 66.42 HISTORY.

Comp. § 15, ch. 24099, 1947.

§ 66.43 HISTORY.

Comp. § 16, ch. 24099, 1947.

§ 66.44 HISTORY.

Comp. § 17, clh. 24099, 1947.

§ 66.45 HISTORY.

Comp. § 18, ch. 24099, 1947.

§ 66.46 HISTORY.

Comp. § 19, ch. 24099, 1947.

§ 66.47 HISTORY.

Comp. § 20, ch. 24099, 1947.

CHAPTER 67.

Appellate Proceedings in Chancery.

§ 67.01 HISTORY.

Consolidated with § 59.01, see § 1, ch. 22854, 1945.

ANNOTATION. Cited in Lorenz v. Lorenz, 152 Fla . 779, 13 So.

(2di) 806; Fonell v. Williams, 157 FLa. 673 , 26 So. (2d ) 800.

§ 67.02 HISTORY.


ANNOTATION. It is not abrogated by Rule 34.-

In accord with original, see Eristavitchitcherine v. Miami Beach Federal Sav., etc., Ass'n, 154 Fla. 100, 16 So. (2d) 730.

Interlocutory appeals are by the statute made a matter of right, and only the method of the exercise of that right is changed by Rule 34, which also prescribes a method for reviewing orders and decrees made subsequent to the final decree. Eristavitchitcherine v. Miami Beach Federal Sav., etc., Ass'n, 154 Fla. 100, 16 So. (2d> 730.

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Review on appeal.-All interlocutory rulings and orders in chan

cery are reviewable on an appeal taken directly from a final decree. Sirman v. Conklin, 154 Fla. 304, 17 So. (2d) 298.

§ 67.03 HISTORY.


ANNOTATION. Appeal must be taken within the prescribed time.

After the lapse of the 60 day period within which an appeal from a final decree of foreclosure should have been taken, an attempted appeal, though correct as to form, will not confer jurisdiction upon the Supreme Court to review such a decree, and such attempted appeal is subject to dismissal on motion or by the court sua sponte. Eristavitchitcherine v. Miami Beach Federal Sav., etc., Ass'n, 154 Fla. 100, 16 So. (2d) 730.

In such case, the Supreme Court was without jurisdiction to review a final decree of foreclosure in respect to the alleged insufficiency of the notice provided therein. Id.

So also, where petition for certiorari was filed more than seven months after recordation of first order sought to be reviewed and more than sixty days after recordation of the second order, it was filed too late. Moore v. Johnson, 154 Fla. 756, 18 So. <2d) 786.

Seasonable appeal opens up entire case.-An appear from a final decree, seasonably taken, opens up for consideration the entire case upon its merits, not only upon the final decree itself, but also all prior interlocutory orders connected with and leading up to the final decree, and the appellate court may consider questions not noticed at the hearing before the chancellor. Hollywood v. Clark, 153 Fla. 501, 15 So. (2d) 175, 181.

But appeal from subsequent supplemental order does not bring up final decree for review.While an appeal from a final decree opens up all preceding orders for review, an appeal from a subsequent supplemental order does not bring up the final decree for review, and on such an appeal, assignments of error based on the final decree will not be considered, especially where the appeal from the subsequent order is taken after the time for appealing from the final decree has expired. Hollywood v. Clark, 153 Fla. 501, 15 So. <2d) 175, 182.

''The subject matter" of an appeal from an order or decree on rehearing modifying a former final decree by adding a new provision thereto, was the order itself, and supreme court could not review the court's original fina-l decree which was not appealed. Hollywood v. Clark, 153 Fla. 501, 15 So. (2d) 175, 183.

Filing petition for rehearing does not lengthen time for appeal.-The mere filing and presentation of a petition for rehearing does not operate

to lengthen the time within which an appeal may be taken from a final decree. HollYWood v. Clark, 153 Fla. 501, 15 So. (2d) 175, 183.

An appeal from an order denying a petition for rehearing does not bring up for review the final decree after the time for appealing therefrom has expired. Hollywood v. Clark, 153 Fla. 501, 15 So. (2d) 175, 181.

Applied in Saffran v. Adler, 152 Fla. 405, 12 So. (2d) 124; Sirman v. Conklin, 154 Fla. 304, 17 So. (2d) 298.

Cited in Lorenz v. Lorenz, 152 Fla. 779, 13 So. (2d) 806; Race v. Powell, 153 Fla. 487, 15 So. (2d) 59.

Quoted in part in Magnant v. Peacock, 156 Fla. 688, 24 So. (2d) 314.

§ 67.04 HISTORY.


ANNOTATION. Cross reference.-See annotation under su

preme court rule 35 as to applications for supersedeas made to supreme court.

Cited in Saffran v. Adler, 152 Fla. 405 , 12 So. (2d) 124.

§ 67.05 HISTORY.


§ 67.06 HISTORY.


ANNOTATION. Cross reference.-See annotation to § 59.08.

Cited in Saffran v. Adler, 152 Fla. 405, 12 So. (2d) 124.

§ 67.07 HISTORY.

Repealed by § 45, ch. 22854, 1945.

ANNOTATION. Cited in Saffran v. Adler, 152 Fla. 405, 12 So.

(2d) 124; Fone1l v. Williams, 157 Fla. 673, 28 So. (2d) 800.

§ 67.08 HISTORY.

Transferred and renumbered § 59.41, see § 41 , rh. 22854, 1945.

ANNOTATION. Cited in Saffran v. Adler, 152 Fla. 405, 12 So.

(2d) 124; Fonell v. Williams, 157 Fla. 673, 26 So. (2d) 800.

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CHAPTER 69.

Miscellaneous Court Provisions.


II. NATURE AND EXTENT OF REMEDY.

B. Confined to Illegality of Assessments. On face of assessment roll.

Error, in the name of the owner of property, on the face of assessment by city for ad valorem tax may be corrected under this section. Fort Myers v. Heitman, 149 Fla. 203, 5 So. (2d) 410, 414.

§ 69.04 HISTORY.

Am. § 1, ch. 22075, 1943. Repealed § 1, ch. 24350, 1947.

§ 69.05 HISTORY.

Repea•led § 1, <:h. 24350, 1947.

§ 69.06 HISTORY.

Am. § 2, ch. 22075, 1943. Repea;led § 1, <:h. 24350, 1947.

§ 69.07 HISTORY.

Am. § 3, ch. 22075, 1943.

§ 69.08 HISTORY.

Repea;led § 1, ch. 24350, 1947.

§ 69.14 HISTORY.

Comp. § 3A, ch. 22075, 1943. Repealed § 1, ch. 24350, 1947.

§ 69.15 HISTORY.

Comp. §§ 1-3, ch. 21980, 1943.

§ 69.16 HISTORY.

Comp. § 2, ch. 24350, 1947.

CHAPTER 70.

Ejectment.


A plaintiff in ejectment must recover on the strength of his own title and nat on the weakness of thrat of his adversary. Drawdy Inv. Co. v. Leonard, 158 Fla. 444, 29 So. (2d) 198.

Cited in Kester v. Bostwick, 153 Fla. 437, 15 So. <2d> 201.


The general rule is that the successful plaintiff in ejectment may recover all mesne profits, accruing during the adverse occupancy by the defendant. Kester v. Bostwick, 153 Fla. 437, 15 So. (2d) 201, 205, discussing the measure of "mesne profits" sometimes called damages.

This section authorizes a. combination of the action of ejectment with that of trespass for mesne profits but prescribes no procedure as to the latter. Since the two remedies are combined in one declaration they should be submitted and concluded in the same case. Kester v. Bostwick, 153 Fla. 437, 15 So. (2d) 201, 205.


When section a.pplicable.-This section is applicable only when a tax deed is held void, and contemplates payment for the tax deed and all taxes paid with interest in addition to permanent improvements. Kester v. Bostwick 153 Fla. 437, 15 So. (2d) 201, 206.

Requirements as to good faith.-If occupant of land believed his title to be good and valid, and if such belief was well grounded, it satisfied every element of good faith .' Kester v. Bostwick, 153 Fla. 437, 15 So. (2d) 201, 206.

Procedure in ascertaining value of improvements.-The procedure outlined in this and the following sections should be followed in ascertaining the value of improvements to be paid for , under § 196.07, by party in whose favor a judgmeni declaring a tax deed void is entered. Kester v. Bostwick, 153 Fla. 437, 15 So. (2d> 201.

CHAPTER 71.

Re-Establishment of Lost Papers, Records, etc.

§ 71.02 HISTORY.

Am. § 7, ch. 22858, 1945.

CHAPTER 72.

Adoption of Children.

§ 72.01 HISTORY.

Repealed by § 20, ch. 21759, 1943; see § § 72.07-72.26.

§ 72.02 HISTORY.


§ 72.03 HISTORY.


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§ 72.04 HISTORY.

Repealed by § 20,' ch. 21759, 1943; see §§ 72.07-72.26.

HISTORY. § 72.05


HISTORY. § 72.06

Repealed by § 20 , ch. 21759, 1943; see § § 72.07-72.26.

§ 72.07 HISTORY.

Comp. § 1 .• ch. 21759, 1943.

ANNOTATION.

Eff~t of failure to effectuate by statutory proceedings an adoption a.greement.-See generally, Sheffield v. Barry, 153 Fla. 144, 14 So. (2d) 417, wherein there was partial performance of the agreement.

Cited in In re Hewett's Estate, 153 Fla. 137, 13 So. (2d) 904 ; In Re Brock, 157 Fla. 291, 25 So. (2d) 659; Petition of G.aban, 158 Fla. 597, 30 So. (2d) 176.

§ 72.08 HISTORY.

Comp. § 2, ch. 21759, 1943.

ANNOTATION.

Under this section, the interlocutory decree is prerequisite to the proper exercise of jurisdiction in entering a final decree since, in a technical sense, jurisdiction had already attached as to the subject matter and the parties. In re Johnson, 157 Fla. 25, 24 So. (2d ) 711.

The circuit court is clothed with jurisdiction in all proceedings relating to adoption of minors and such proceedings are required to be conducted in chancery. In re Brock, 157 Fla. 291, 25 So. (2d) 659.

Cited in Petition of Gaban, 158 Fla: 597, 30 So. (2d) 176. .

§ 72.09 HISTORY.

Comp. § 3, ch. 21759, 1943.

§ 72.10 HISTORY.

Comp. § 4, ch. 21759, 1943.

§ 72.11 HISTORY.

Comp. § 5, ch. 21759, 1943. Am. § 1, ch. 23721 , 1947.

§ 72.12 HISTORY.

Comp. § 6, ch. 21759, 1943.

ANNOTATION. Cited in Petition of Gaban, 158 Fla. 597, 30 So.

(2d) 176.

§ 72.13 HISTORY.

Comp. § 7, ch. 21759, 1943.

ANNOTATION.

In proceedings having to do with a minor's personal or property rights, a guardian ad litem must be appointed to represent the minor and to secure service on him, since neither the minor nor any other person for him could accept service in such proceedings, though the guardian ad litem might waive service upon himself. In re Brock, 157 Fla. 291, 25 So. (2d) 659.

Cited in Petition of Gaba n , 158 Fla. 597, 30 So. (2d) 176.

§ 72.14 HISTORY.

Comp. § 8, ch. 21759, 1943. Am. § 2, ch. 23721 , 1947.

ANNOTATION. When the contents of a written instrument ts

sworn to before an officer authorized to administer oaths or take acknowledgments, the verification is stronger than would be an acknowledgment not under oath. In re Stonehouse's Adoption, 155 Fla. 223, 19 So. (2d) 788.

This section, when read in connection with § 72.13, removes the requirement for the appointment of a guardian ad litem to represent and secure the service on a minor parent. And makes the State Welfare Board the guardian for all minor children who have no natural parents, whose natural parents have abandoned t hem or surrendered their rights as parents in them to others. Ih re Brock, 157 Fla. 291, 25 So. (2d) 659.

An unmarried mother who is a minor may execute a valid consent under this section, so as to obviate the necessity of appointing a guardian ad litem to represent and secure process on her. Id.

Applied in Petition of Gaban, WS Fla. 597, 30 So. (2d) 176.

§ 72.15 HISTORY.

Comp. § 9, ch. 21759, 1943. Am. § 3, ch. 23721 , 1947.

ANNOTATION.

Cited in In re Stonehouse's Adoption, 155 Fla. 223, 19 So. (2d) 788.

§ 72.16 HISTORY.

Comp. § 10, ch. 21759, 1943.

§ 72.17 HISTORY.

Comp. § 11, ch. 21759, 1943.

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§ 72.18 HISTORY.

Comp. § 12, ch. 21759, 1943.

§ 72.19 HISTORY.

Comp. § 13, ch. 21759, 1943.

ANNOTATION. The compliance with the provisions of this

section is mandatory as a prerequisite to the jurisdiction to enter a final decree awarding permanent guardianship. In re Stonehouse's Adoption, 155 Fla. 223, 19 So. (2d) 788.

It is uniformly held that this is a statutory proceeding and that for courts to exercise the powers conferred by statute the statutory requirements must be substantially complied with. Id.

Applied in Petition of G aban, 158 Fla. 597, 30 So. (2d) 176.

§ 72.20 HISTORY.

Comp. § 14, ch. 21759, 1943.

ANNOTATION. Where court entered final decree in adoption

proceedings, after interlocutory order had been entered without notice to State Welfare Board and in the absence of supplementary recommendations on the desirability of the adoption, supreme court held that prescribed formalities of procedure are to provide a means to an end. When they relate to the means by which jurisdiction is to be acquired they are substantive and must be pursued with great strictness, but when they relate to the exercise of jurisdiction which is otherwise complete, a breach thereof not shown to be harmful is taken to be harmless error. In re Johnson, 157 Fla. 25, 24 So. (2d) 711.

Applied in Peti•tion of Gaban, 158 Fla. 597, 30 So. (2d) 176.

§ 72.21 HISTORY.

Comp. § 15, ch. 21759, 1943.

ANNOTATION. Quoted in Barco v. Barco, (Fla .) , 30 So. (2d)

632.

§ 72.22 HISTORY.

Comp. § 16, ch. 21759, 1943.

ANNOTATION. Applied in Petit ion of Gaban, 158 F la . 597,

30 So. (2d) 176.

§ 72.23 HISTORY.

Comp. § 17, ch. 21759, 1943.

§ 72.24 HISTORY.

Comp. § 18, ch. 21759, 1943. Am. § 4, ch. 23721, 1947.

§ 72.25 HISTORY.

Comp. § 20, ch. 21759, 1943.

§ 72.26 HISTORY.

Comp. § 1, ch. 21951, 1943.

ANNOTATION. Cited in Petition of Gaban, 158 Fla. 597, 30 So.

(2d) 176.

§ 72.27 HISTORY.

Comp. § 5, ch. 23721, 1947.

§ 72.28 HISTORY.

Comp. § 6, ch. 23721, 1947.

§ 72.29 HISTORY.

Comp. § 7, ch. 23721, 1947.

§ 72.30 HISTORY.

Comp. § 8, ch. 23721, 1947.

§ 72.31 HISTORY.

Comp. § 1, ch. 23891, 1947.

§ 72.32 HISTORY.

Comp. § 1A, ch. 23891, 1947.

§ 72.33 HISTORY.

Comp. § 2, ch. 23891, 1947.

§ 72.34 HISTORY.

Comp. § 3, ch. 23891, 1947.

§ 72.35 HISTORY.

Oomp. § 4, ch. 23891, 1947.

§ 72.36 HISTORY.

Comp. § 5, ch. 23891, 1947.

§ 72.37 HISTORY.

Oomp. § 6, ch. 23891, 1947.

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