The burden was upon the complainants in the Court below to show by their bill that *Page 369 the Court was without jurisdiction of the person of the infant, John Palmer Corell, when the decree of foreclosure, signed September 27, 1911, and filed and recorded on October 3, 1911, was rendered. It is conceded that the Court had jurisdiction of the subject matter. The record in the foreclosure suit, which by stipulation the Court was permitted to consider in connection with the demurrer to the bill, shows that proper affidavit for publication was filed December 22, 1910, and proper order of publication made the same day, and proof of publication pursuant to the order was filed October 3, 1911, the same day the decree was filed, having been sworn to by the publisher of the newspaper on September 26, 1911. The replication and several other papers in the case, some of which showed they had been signed on previous dates, were marked filed October 3, 1911; thus raising the very reasonable presumption that the chancellor had all these papers before him, and then had them all filed at the same time the decree was filed.
The bill, which seeks the annulment of the foreclosure decree, alleges, that when the latter was granted, and also when the guardian ad litem was appointed, no proof of publication had ever been filed in said cause; but it does notallege that when these things were done the chancellor did nothave proof before him of the publication of the order as required by the order and the statute.
Nor is it charged that the clerk did not mail a copy of the order to the infant defendant. But it is charged that he did not post a copy at the court house door. Proof of this was not required by Chapter 5910 of the Laws of 1909, now Section 3115 of the Revised General Stats. But if this had been necessary, in the absence of a showing to the contrary, the clerk will be presumed to have done his duty in that respect. However, the record, considered by stipulation, indicates that the posting was done. The clerk's progress docket in the foreclosure suit, by brief notations, *Page 370 showed that on December 22, 1910, the date the order for publication was made, two copies of the notice of publication were mailed, one posted, and one "to Metropolis," the newspaper in which the order of publication was shown to have been published.
The clerk was required by Section 1831 of the Gen. Stats of 1906, to keep a progress docket, wherein he should note the filing of papers, and any step taken in the clerk's office in connection with any cause, at law or in equity. There was no statute requiring him to file in Court an affidavit or certificate as to the posting of the notice of publication at the court house door. This makes the entry noted in the progress docket the only "return" on this point which he had to make. And this notation will be conclusive as between the parties unless its falsity is disclosed by some other portion of the record. 21 R. C. L. 1321. It is only where decreepro confesso is entered upon constructive service that the clerk must file with the papers a certificate showing compliance with the statutory requirements as to publication, posting of notice at court house door, etc. See Section 1897, Gen. Stats. of 1906, now Section 3154 of Rev. Gen. Stats. of 1920. The statute does not prescribe how proof shall be made to the Court of constructive service upon a non-resident infant before appointment of guardian ad litem is made. See Section 3115, Rev. Gen. Stats., being Chap. 5910, Laws of 1909.
Under this state of the case, and bearing in mind that the bill must be construed most strongly against the pleader, can this Court say that the bill below shows that the Court below had no proof before it of the constructive service, and hence no jurisdiction of the person of such infant defendant, when the guardian ad litem was appointed, or the final decree entered? To do so, would be to indulge in conjecture; and this is never done in order to overthrow or impeach a decree or judgment. Doubts will be resolved in *Page 371 favor of the validity of a decree when attacked, either collaterally or by bill to impeach, rather than against such validity, the burden being upon the complainant. 34 C. J. 494-5, and cases cited; 21 C. J. 781; McMillon v. Harrison,66 Fla. 200, 63 So. 427. Especially is this true where the interests of third parties have accrued.
The Court, in the foreclosure proceedings, having had jurisdiction of the subject matter and the parties, either by personal or constructive service, its decree cannot be impeached on original bill filed for that purpose for mere errors or irregularities, though such errors or irregularities might have afforded grounds for reversal or modification on appeal. Day v. Huchman, 65 Fla. 186, 61 So. 445; Lucy v. Dea,59 Fla. 552, 52 So. 515; Wilds v. State, 79 Fla. 575,84 So. 664; Torrey v. Bruner, 60 Fla. 365, 53 So. 337.
The cases of McDermott v. Thompson, 29 Fla. 299, 10 So. 584, and Laflin v. Murphy, 52 Fla. 529, 42 So. 387, were cases where the irregularities complained of were assigned to error in this Court on direct appeal from the respective decrees.
It is true that the guardian ad litem filed an answer on behalf of the infant defendant (which answer did not admit any of the allegations of the bill but called for strict proof thereof) without being served with a subpoena. He was no doubt informed of his appointment by the Court and filed answer without waiting to be served by subpoena. He also waived the usual notice as to the taking of testimony. It does not appear how either one of these matters prejudiced the interest of the infant defendant. While a guardian ad litem cannot admit or waive anything adverse or prejudicial to an infant, he can bind such infant by admissions, waiver or stipulations as to such minor matters as are necessary to facilitate the progress of a suit and which do not affect the infant's substantial rights. *Page 372 14 R. C. L.; Kingsbury v. Bingham, 134 U.S. 650,33 Law Ed. 1047.
Answer was filed in the foreclosure suit by the adult defendants and the administrator ad litem of the estate of Adam Correll, which alleges that the mortgage and note were executed without consideration. It is true that the guardian ad litem did not object to the introduction of certain testimony in such suit, on behalf of complainant, tending to prove the consideration for the note and mortgage, which testimony, in so far as the same referred to the agreement with the deceased Adam Corell, was incompetent. Neither did the solicitors for the adult defendants object to the introduction of said testimony. No reason for such failure appears in the record. It is hardly possible that the distinguished counsel who represented the adult defendants, or the guardian ad litem, who shortly afterwards served honorably and acceptably for some years as Circuit Judge of this same court, overlooked this point of objection, but it is possible that they had become convinced that there was a consideration for the mortgage, and that this could be, or had been, proven by other competent testimony; it appearing that an agreement between the complainant and John Corell, was offered in evidence, but it does not appear in the record.
I do not understand from this bill that any fraud is charged against the guardian ad litem in this connection. In the absence of fraud, mere errors on the part of the chancellor, in the admission or rejection of testimony, where the court had jurisdiction of the subject matter and the parties, does not afford sufficient ground to maintain an original bill for the impeachment of the final decree.
Nor does the bill in this case charge that the mortgage was invalid or without consideration, nor is the validity of the decree attacked because it upholds the validity of *Page 373 the mortgage. In fact, the validity of the mortgage is practically admitted by the bill because the prayer of the bill is that the complainants be allowed the right to redeem. Hence the bill does not show that the infant defendant in the foreclosure suit had at that time, or sine, any meritorious defense.
In the case of Lucy v. Deas, above cited, it is said: "Property in this State is subject to the laws thereof, and judgments rendered by the courts in proceedings in rem upon such property are not null and void because the owner was out of the State and had no personal notice of the suit, where the property is within the jurisdiction of the court and the constructive notice required by law was given. See Pennoyer v. Neff, 95 U.S. 714; United States v. Throckmorton, 98 U.S. 61. The giving of incompetent or false testimony at the hearing, and the injustice of the claim asserted against the property, do not render the judgment null and void. 23 Cyc. 1000, 1100; Bleakley v. Barclay, 75 Kan. 462, 89 Pac. Rep. 906, 10 L.R.A. (N.S.) 230, and notes."
The order appealed from should therefore be affirmed.