On petition for rehearing it is pointed out that the original opinion in the case at bar is unsound because the real property owned by Burkhart and located in Dade County, Florida, nor seized under the process of the court at the commencement of the suit for alimony, and for this reason several of the authorities cited in the opinion were inapplicable and not controlling. The cited cases have been re-examined in the light of this contention. The answer to this contention is found in Schouler on Marriage, Divorce and Separation, Vol. 2 (6th Ed.) page 1943 in the following portion of paragraph 1760: *Page 469
"1760. Jurisdiction Over Property Rights Within Jurisdiction. . . .
"It was claimed that alimony could not be collected by a proceeding quasi in rem, as no debt existed at the commencement of the action, but the obligation to pay alimony arises only as a result of the suit.
"The Court remarks, however, that the distinction is without legal significance, as the power of the State to proceed against the property of an absent defendant is the same whether the obligation sought to be enforced is an admitted indebtedness or a contested claim, and it is immaterial that the claim is at the commencement of the suit inchoate, to be perfected only by time or the action of the court. The only essentials to the exercise of the State's power are presence of the res within its borders, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard. The injunction is an effective seizure for this purpose."
It is well settled law in Florida that courts of chancery have the power to enforce their orders and decree lawfully made and entered. See Section 67 of Chapter 14658, Acts of 1931, Laws of Florida. The record shows that Burkhart was by a court of chancery ordered to pay to his wife certain sums as temporary alimony and attorneys' fees. This order was based on constructive service. The Circuit Court of Dade County, after the entry of the order allowing temporary alimony and attorneys' fees, likewise ordered that property of Burkhart situated in Dade County be sequestered and sold to pay the amount adjudged to be due by him as alimony and counsel fees. The failure to seize or take over the property of Burkhart located within the jurisdiction of the court when the suit was instituted does not vitiate the proceeding now in process to sell the said property, as contended under the case of Pennoyer v. Neff, *Page 470 95 U.S. 714, 24 L. Ed. 565. It was there held that the law assumes that property is always in the possession of its owner, in person or by agent, and the law proceeds on the theory that its seizure under the process of the court will inform the owner (in this case Burkhart) that his property is taken into custody of the court under its said process and that the owner thereof must look to any legal proceedings authorized by law for its seizure and sale. The judgment here challenged on constructive service against the non-resident Burkhart is a judgment in rem on his property situated within the jurisdiction of the court. See Newton v. Bryan, 142 Fla. 14,194 So. 282. The law does not require notice prior to the entry of a sequestration order similar to the one questioned, but the notice of the sale of said property thereunder is sufficient. See Geary v. Geary, 272 N.Y. 390, 6 N.E.2d 67, 108 A. L. 1923, and annotations 1303, et seq.
The petition for a rehearing is denied.
WHITFIELD, TERRELL and BUFORD, J. J., concur.
THOMAS, J., agrees to conclusion.
BROWN, J., dissents.