Opinion
No. 58-356.
February 5, 1959.
Appeal from the Circuit Court for Dade County, Marshall C. Wiseheart, J.
Daniel L. Ginsberg, Miami, for appellant.
Daniel Neal Heller, Miami, for appellee.
A complaint in chancery by the appellant attacked the validity of orders entered against her in other proceedings upon the allegation that such orders were void. Upon motion, the chancellor dismissed the complaint upon the ground that it failed to state a claim upon which relief could be granted. This appeal is from the order of dismissal.
The orders attacked by the complaint were two in number, namely, an order or judgment of contempt, and a money judgment entered in favor of the appellee and against the appellant and others. The appellant asserted that the judgments were void for the reason that they were obtained without any service of process upon her or notice whatsoever, and at a time when she was without the jurisdiction of the court; that no appearance had been made nor had there been a waiver of service of process.
In Gay v. McCaughan, Fla. 1958, 105 So.2d 771, the Supreme Court of Florida had before it for review an order dismissing a complaint in chancery similar to the complaint in the case at bar. The Supreme Court in that case reversed the order of dismissal and in so doing passed directly upon the same order or judgment of contempt as is involved here. It therefore follows that the questions raised on this appeal as to the validity of the order or judgment of contempt have been rendered moot.
The validity of the money judgment rendered in favor of the appellee, we feel, is likewise controlled by the pronouncements in the McCaughan case. It is true the money judgment in the McCaughan case was awarded for attorney's fees whereas the award in this case was to the court-appointed curator for his services as an officer of the court. This distinction does not, however, create such a difference as to warrant the application of a different rule. In fairness to the chancellor who entered the order appealed, we note that the opinion in Gay v. McCaughan, supra, was rendered subsequent to the entry of his order.
Accordingly, the order appealed is reversed and the cause remanded for proceedings not inconsistent with the opinion of the Supreme Court of Florida in Gay v. McCaughan, supra.
Reversed and remanded.
CARROLL, CHAS., C.J., and HORTON and PEARSON, JJ., concur.