Zehnbar v. Spillman

Citations

• 25 Fla. 591

Syllabus

<p>1. A suit by bill in chancery is the proper proceeding for the removal of trustees, but if the proceeding be by petition, which contains proper jurisdictional matter and makes proper .parties, the decree therein will not be void because the paper is styled a petition instead of bill.</p> <p>2. The fact that in such petition the prayer is for notice to the defendants instead of subpoena, does not of itself render the proceeding void. It is an irregularity that might be waived by the defendants, in which event they would be as fully parties before the court as if brought in by subpoena; but if they fail or refuse to appe-ir on mere notice, without service of subpoena, the court does not acquire jurisdiction of them, there being no law to authorize that mode of bringing them within its jurisdiction.</p> <p>3. A mortgage given by trustees was foreclosed, and the mortgaged property sold, but the proceeds of sale being insufficient to satisfy the decree, an order was given for executions to issue against the trustees for the balance due, to he satisfied out of trust property not covered by the mortgage : Held, That the order and the executions were void for the reason that trust property can only be reached by proceeding in chancery when it is bound by the trusti es within the scope of their authority, and the rule (89 for suits in equity) which authorizes execution on failure of the mortgaged property to satisfy' a decree of foreclosure does not ap.dy.</p>