I concur in the conclusions reached as stated in the opinion prepared by MR. JUSTICE ELLIS, but I can not subscribe to that part of the opinion which appears to me to be in conflict with the opinion of McDaniel v. McElvy
We do not regard the provisions of Chap. 11383 as requiring the complainant to allege the facts which support his sworn statement or allegation with reference to interested persons whose names and residences are unknown, or his lack of knowledge and his inability to ascertain whether the defendants are dead or alive, so long as such allegations strictly follow the statute. The allegations of paragraphs first and ninth of the bill of complaint herein, taken together, are therefore sufficient to authorize the issuance of the order of publication. See Ballew v. Young, 103 Pac. R. 623; 23 L. R. A. (N. S.) 1084. The requirements of the statute referred to in Ortell v. Ortell,
But while allegations of a categorical nature which follow the words of the statute are sufficient as a predicate for the issuance of the order of publication, the Chancellor is not thereby precluded from requiring appropriate proof of those allegations, as any other allegations, as a prerequisite to the entry of a decree. What and how much evidence the Court shall require to satisfy it upon the question of due diligence in these matters rests largely with the court granting the order. Extraordinary steps to ascertain the whereabouts of the party are not required. But judgments which exclude persons from any interest in or lien upon land should not be rendered without actual notice, when by the exercise of reasonable diligence actual notice can be given. Reasonable diligence in such matters is an honest effort, — and one appropriate to the circumstances, — to ascertain whether actual notice may be given, and if so to give it. Such effort, however, *Page 1053
need not embrace a search in remote parts of the State, Jacob v. Roberts,
It will be observed that the quotation above included the following language, to-wit:
But while allegations of a categorical nature which follow the words of the statute are sufficient as a predicate for the issuance of the order of publication, the chancellor is not thereby precluded from requiring appropriate proof of those allegations, as any other allegations, as a prerequisite to the entry of a decree. What and how much evidence the Court shall require to satisfy it upon the question of due diligence in these matters rests largely with the court granting the order. Extraordinary steps to ascertain the whereabouts of the party are not required. But judgments which exclude persons from any interest in or lien upon land should not be rendered without actual notice, when by the exercise of reasonable diligence actual notice can be given.
It appears to me as being a logical and necessary conclusion that if the chancellor is not precluded from requiring appropriate proof of the allegations upon which order of publication is based as a prerequisite to entry of a decree and if the quality and quantity which should be required to satisfy the court upon the question of due diligence in these matters rests largely with the Court granting the order, then it follows that the Chancellor upon application being made for order of publication may, before granting the order, require proof satisfactory to him of the *Page 1054 allegations upon which the order is to be based. This being true, then the Chancellor in the instant case was within the proprieties when he required proof that the affiant believed the defendants to be residents of a state or country other than the State of Florida. I can see no reason why the Chancellor, knowing that he must have this proof before he would enter a decree pro confesso based on the notice of publication, should not logically require that proof before making the order for publication, and thereby save expense, time and labor in the exercise of his lawful judicial discretion.
I therefore concur in the conclusion that the motion to quash should be granted.
