rendered on August 17, 1895, in favor of appellants, and the order of October 7, 1895, setting aside that final decree, and all proceedings subsequent thereto, should be reversed and set aside.

HOCKER and MAXWELL, CC., concur.

PER CURIAM. The foregoing opinion has been examined by the court, and is hereby approved and adopted, and ordered to be filed as the opinion of the court in said

cause.

TAYLOR, C. J., on account of sickness in his family, did not participate in this decision.

RAWLS v. TALLAHASSEE HOTEL CO. et al.

(Supreme Court of Florida. Nov. 26, 1901.)

APPEAL ASSIGNMENTS OF ERROR-WAIVERSTREETS-TITLE TO SOIL-WIFE'S SEPARATE ESTATE-DEFECT OF PARTIES-REVERSAL. 1. Assignments of error must be argued, or they will be deemed abandoned.

2. The proprietor of lots abutting on a public street is presumed, in the absence of evidence to the contrary, to own the soil to the center of the street.

3. Under section 2071 of the Revised Statutes, the care and management of a wife's separate statutory property is committed to her husband, and a decree perpetually enjoining him from making use of her property, or a portion thereof, in a particular manner, beneficial to the property, necessarily affects the interest of the wife adversely, so as to require that she be made a party to the suit in which such decree is sought.

4. A decree rendered in the absence of an indispensable party will be reversed, and an objection of this character can be urged for the first time in the appellate court, or be considered by the court of its own motion.

(Syllabus by the Court.)

Appeal from circuit court, Leon county; John W. Malone, Judge.

Bill by the Tallahassee Hotel Company and others against William A. Rawls. Decree for complainants, and defendant appeals. Reversed.

On April 1, 1895, the appellees, the Tallahassee Hotel Company (a corporation), Sarah S. Lewis, George Lewis, Edward Lewis, and William C. Lewis, filed their bill of complaint in the circuit court of Leon county against the appellant, William A. Rawls, alleging, among other things, that during or about the month of January, 1887, "with the consent of the legal authorities of the city of Tallahassee," they "constructed and laid a sewer pipe extending from the Leon Hotel, which hotel is situated in said city, on McCarty street, between Monroe and Adams streets, along said McCarty street easterly, crossing said Monroe street, Calhoun street, and Gadsden street, to the eastern end of said McCarty street," and thence

through the private lands of the said George, Edward, and William C. Lewis, for a distance of about 500 feet, to the St. Augustine Branch; that this sewer pipe was laid by them for the exclusive use of said Leon Hotel and the family residences of Sarah S., George, and Willaim C. Lewis; that they owned, were in possession of, occupied, and used all the city lots and tracts of land along McCarty street between the Leon Hotel and the eastern end of said street, which was the eastern boundary of the city of Tallahassee, thence to the said St. Augustine Branch, except those city lots between Monroe and Calhoun streets; that the entire expense of said sewer was paid by them, and "the said sewer, and all the rights and privileges attached thereto, and its use," were their private property.

The bill then alleged that the appellant, William A. Rawls, had given notice to complainants that he intended to, and would, notwithstanding their objection, "tap said sewer pipe," and connect therewith a sewer pipe for his own use; that they had refused to permit such use of their sewer pipe, and notified Rawls that he must not use it, but he persisted in his determination to do so; that Rawls threatened and was about to tap their said sewer pipe, which would be an injury to them, and cause the casting of waste, refuse, and other matter upon their premises; and that Rawls threatened to cast and empty and to deposit quantities of rubbish, waste, refuse, and other matter upon their premises, for which they had no adequate remedy at law.

An injunction was prayed for, perpetually enjoining Rawls from "tapping, joining to, or otherwise interfering with the said sewer pipe," and "perpetually enjoining him from dumping said matter" on complainants' premises.

Appellant filed a general demurrer to the bill for want of equity, which was overruled, and thereupon he answered the bill. He admitted that there was a sewer pipe laid between the points and along the route mentioned in the bill, but averred, upon information and belief, "that there was no official authorization or license by the legal authorities of said city to said complainants for laying said sewer," and he denied that said sewer was laid with the consent of said authorities. He averred that he had no information as to whether said sewer was laid for the exclusive use of complainants, as alleged in the bill, or as to whether the entire expense of said sewer was paid by them, and the sewer, and all the rights and privileges attached thereto, and its use, were the private property of complainants, and further averred, upon information and belief, that, if said allegations were true, neither the city of Tallahassee, nor its legal authorities, had any right or power, under the law, to grant to complainants the right to construct and lay said sewer through the

public streets of said city; and he prayed the same benefit of this defense as if it had been raised by demurrer to the bill.

The answer admitted that complainants owned all the lots on the north side of McCarty street from Adams street to the eastern boundary of the city, except those lots situate between Monroe and Calhoun streets, and averred that two of the lots between said last-named streets were owned at the time said sewer was laid, and ever since, by Mary M. Rawls, appellant's wife, and appellant and his family had their home and residence thereon; that the said lots had a frontage on McCarty street of 130 feet, and that said sewer pipe was laid along the entire frontage of said lots, on the half of McCarty street next thereto, and within a few feet of the sidewalk in front of appellant's residence; that for such distance the sewer pipe was laid in the soil of the street, the fee of which was vested in appellant's wife, Mary M. Rawls; and that she had never granted or in any way given to complainants, or any of them, the right or privilege of laying said sewer in the soil in front of her said lots, and the complainants were trespassers thereon.

The answer alleged, on information and belief, that at the time of institution of suit the sewer pipe did not empty into the St. Augustine Branch at any point on the lands of any of the complainants, but upon the lands of the estate of the late James D. Westcott, and that since the institution of suit the complainants, or some of them, had the eastern extremity of the sewer moved to a point further north than where it formerly debouched, and onto the lands of the complainant George Lewis.

The defendant admitted that before the institution of suit he made preparations to connect with said sewer at a point immediately in front of the lots owned by his wife, and in the soil of the street the fee of which was in his wife, for the purpose of domestic or house drainage, as he had been advised and believed, and thereupon alleged, he had a legal right to do, but, in a spirit of abundant caution, friendliness, and courtesy, be fore beginning said work he sought the complainant Edward Lewis, who, he was informed and believed, was practically the owner and manager of the Leon Hotel, and who, defendant understood, had laid said sewer for the drainage of said hotel, and asked his consent to connect therewith a pipe from defendant's residence; that complainant Edward Lewis gave such consent, and defendant thereafter began to dig a ditch from the lot of his wife to the sewer; that after he had dug down to the sewer, and was about to cut into it, the complainant George Lewis came to his office and made objection to his proceeding with the work, and asked him to stop it; that after talking the matter over with him, and afterwards with him and William C. Lewis together, they proposed

that if he would stop work they would coLsent to his connecting with said sewer as soon as they could figure up the cost, and determine what proportion thereof he should pay, for they did not want him to make the connection, and afterwards, upon getting the figures, claim that the "Lewis boys" had gouged him; that thereupon defendant discontinued work, which was some time in December, 1894, and after waiting, to the best of his recollection, until the first pari of March, 1895. without having received any further communication on the subject from the said George and William C. Lewis, he met the latter and told him that, as they had said nothing further about the sewer in the line of their proposition, he would proceed at his convenience to connect therewith, but before taking any other steps in that direction he was served with an injunction.

The answer further averred, upon information and belief, that the entire sewage from the Leon Hotel, a large public house with accommodation for upwards of 150 guests, and from the residences of William C., Sarah S., and George Lewis, all of which were large and commodious, emptied into the sewer, and was discharged into the St. Augustine Branch at the terminus of the sewer, and carried into a ditch which had been cleaned at public expense, and thence drained through said ditch halfway around the city of Tallahassee; that the additional drainage from the residence of defendant and his family would not increase to any perceptible degree the amount of sewage so discharged, nor perceptibly add to the "noxiousness" of said drainage; and that the injury, if any, caused thereby, would be of such slight consequence that a court of equity would not relieve against the same by injunction. Defendant further denied that he had threatened to cast and empty quantities of rubbish, waste, refuse, and other matter upon the premises of complainants, or the lands owned and occupied as their premises, to the injury of said complainants.

A general replication was filed, and testimony taken, whereupon a decree was rendered "that the defendant William A. Rawls, his servants, agents, and attorneys, do henceforth and forever absolutely desist and refrain from tapping, joining other pipe to, or otherwise in any manner interfering with, the sewer pipe mentioned in the bill in this cause, extending from the Leon Hotel along McCarty street easterly, crossing Monroe, Calhoun, and Gadsden streets, in the city of Tallahassee, to the eastern end of said MeCarty street; thence through the private lands of the complainants to the St. Augustine Branch."

From that decree this appeal is prosecuted, and error is alleged in overruling defendant's demurrer to the bill, and in rendering a final decree making the injunction perpetual.

F. T. Myers, for appellant. R. W. Williams, for appellees.

GLEN, C. (after stating the facts). The assignment of error that the court erred in overruling the demurrer to the bill is not so argued, under the rule on the subject, as to demand any consideration on the part of the court, and will therefore be treated as abandoned.

The second and only other error assigned is that the court erred in making the injunction perpetual. The appellees alleged in their bill that the sewer pipe in question was constructed and laid along McCarty street, in the city of Tallahassee, with the consent of the legal authorities of the city. The answer denied this, and further denied the power of the city, or its legal authorities, to grant such a right to appellees. It alleged that Mary M. Rawls, appellant's wife, was the owner of two lots having a frontage of 130 feet on McCarty street, and that the sewer pipe was laid along the entire frontage of said lots, on the half of McCarty street next thereto, in the soil of the street, the fee of which was vested in the said Mary M. Rawls. In the evidence there appears a stipulation by the parties that the said Mary M. Rawls "had a deed in fee to the lots on the northwest corner of Calhoun and McCarty streets, and numbered 117, 120, 121, 122, in the North addition of Tallahassee, having a frontage on McCarty street, according to the map of the city of Tallahassee, one hundred and thirty feet." If further appeared, both from the evidence introduced on the part of the appellant and that introduced on the part of the appellees, that the sewer pipe was laid in the soil of McCarty street, north of the center of said street, and therefore on the side of the street abutting and immediately in front of the lots admitted to be the property of Mrs. Rawls. It also further appeared from the testimony that appellant extended a sewer pipe for domestic purposes from a residence on the lots owned by his wife to the said pipe laid by appellees, and proposed to form a connection therewith, and that in doing so he asserted no individual right separate from that connected with the ownership of his wife in the soil in which the pipe was extended. His action in reference to laying the pipe was consistent with that of representative of his wife, in providing sewerage for her separate statutory real property, and it appears that he acted solely in that character. Under our statute the care and management of the wife's separate property is committed to her husband. Rev. St. 2071; Marye v. Root, 27 Fla. 453, 8 South. 636; Fairchild v. Knight, 18 Fla. 770 (text, 784); McGill v. McGill, 19 Fla. 341. The decree rendered required the appellant to "henceforth and forever absolutely desist and refrain from tapping, joining other pipe to, or otherwise in any manner interfering with, the sewer pipe mentioned in the bill." Mrs. Rawls was conceded to be the proprietor of the lots abutting on McCarty street, in front of which, and on the side of the street ad

jacent thereto, the sewer pipe of appellees was laid. In the absence of evidence to the contrary, she is presumed to have owned the soil of the street to the center thereof. Railway Co. v. Brown, 23 Fla. 104, 1 South. 512; Lovett v. State, 30 Fla. 142 (text, 166, 167), 11 South. 550; Railway Co. v. Lockwood, 33 Fla. 573, 15 South. 327. An abutting proprietor, owning to the center of the street, has the right to use the soil thereunder for all purposes consistent with the full enjoy-. ment of the public easement. Allen v. City of Boston, 159 Mass. 324, 34 N. E. 519, 38 Am. St. Rep. 423; Elliott, Roads & S. (2d Ed.) § 690. This right follows as a necessary incident of the ownership, and extends to any lawful use, so long as such use is consistent with the rights or necessities of the public. Under the decree rendered by the court, the appellant, as the statutory custodian of what must be presumed to be the property of Mrs. Rawls, was, in effect, perpetually enjoined from using her property in such a manner as to interfere with the sewer pipe of appellees; and the decree thus, if not otherwise, adjudicated rights affecting Mrs. Rawls in the enjoyment of her property, although she was not a party to the suit. For the reason that Mrs. Mary M. Rawls was a necessary, indispensable party, the decree should be reversed. Craver v. Spencer, 40 Fla. 135, 23 South. 880; Nelson v. Haisley, 39 Fla. 145, 22 South. 265; Lyon v. Register, 36 Fla. 273, 18 South. 589; Greeley v. Hendricks, 23 Fla. 366, 2 South. 620; Wykes v. Ringleberg, 49 Mich. 567, 14 N. W. 498; Beasley v. Shively, 20 Or. 508, 26 Pac. 846. This defect as to parties renders it improper for this court to consider other questions involved.

The decree appealed from should be reversed, and the cause remanded for further proceedings consistent with this opinion.

HOCKER and MAXWELL, CC., concur.

PER CURIAM. The foregoing opinion has been examined by the court, and is hereby approved and adopted, and ordered to be filed as the opinion of the court in said cause.

TAYLOR, C. J., on account of sickness in his family, did not participate in this decision.

FIRST NAT. BANK OF ORLANDO et al. v. GREIG et al.

(Supreme Court of Florida. Nov. 19, 1901.) ATTACHMENT AGAINST FIRM-PROPERTY OF NONRESIDENT PARTNER-ACTION AGAINST FIRM-JUDGMENT-EXECUTION-INJUNCTION.

1. The individual property of a nonresident partner may be levied upon under a writ of attachment lawfully issued in a suit against the copartners, and such individual property will be subject to sale under execution in pur suance of a valid judgment. regularly obtain ed, condemning the same to sale.

2. Section 1017 of the Revised Statutes is to be strictly construed, and does not provide or contemplate that several or separate personal judgments may be rendered against individual partners not served with process in a suit against the various partners composing the firm.

3. A sale of the individual property of a member of a firm, who has neither been served with process nor entered an appearance, and whose property has not been attached, made under an execution issued upon a separate personal judgment entered against such individual member in a suit against the various members of the firm, is absolutely void, and conveys no title to the purchaser.

4. A purchaser at execution sale under a void judgment is not entitled to an injunction restraining the sale of the property under execution issued in pursuance of a subsequent valid judgment.

(Syllabus by the Court.)

Appeal from circuit court, Osceola county; John D. Broome, Judge.

Bill by the First National Bank of Orlando and William B. Jackson, receiver, against James A. Greig and others. Decree for defendants, and complainants appeal. Reversed.

The appellees herein, James A. Greig and others, filed their bill of complaint in the circuit court of Osceola county against the appellant the First National Bank of Orlando, wherein it was averred that Greig, in his own right and as trustee for his coappellees, was the owner of certain lands in said county therein described, and in possession thereof. The bill set forth that his title was derived by purchase at an execution sale held on November 6, 1893, under an execution issued on October 6, 1893, in pursuance of a judgment recovered on June 20, 1893, by Greig in the circuit court of Osceola county against one J. B. Watson, as a member of the firm of A. E. Drought and J. B. Watson, partners doing business under the firm name of the Kissimee City Bank, and attached hereto as an exhibit a copy of sheriff's deed. It was then alleged that on October 4, 1894, the First National Bank of Orlando recovered judgment in the same court against A. E. Drought and J. B. Watson, partners as aforesaid, for $5,598.88 damages and costs; that said judgment was based on a writ of attachment against the property of said defendants, which was levied upon the lands described in the bill as the property of said Watson on October 5, 1893; that execution had been issued on said judgment and levied upon said lands, which were advertised thereunder for sale on the first Monday in November, 1894. bill prayed for an injunction restraining the sale, and for a decree that the judgment of the bank did not constitute a lien upon the lands.

The

A supplemental bill was afterwards filed, alleging the dismissal of the levy mentioned in the original bill; that the judgment of the First National Bank of Orlando had been amended, and an alias execution issued and levied upon the lands described in the origi

nal bill, together with certain additional lands described in the supplemental bill, which were also averred to be the property of complainant, in his own right and as trustee; and it was alleged that the complainant had acquired title thereto at the execution sale referred to in the original bill.

Answers were filed to the original and supplemental bill, admitting the recovery of judgment by the First National Bank of Orlando, the issuance of execution thereon, the levy thereunder upon the lands mentioned, and that the same were advertised for sale. The answers averred that the judgment of Greig was void; that the court had not obtained jurisdiction of the person of Watson in the suit in which it was rendered, nor had it obtained jurisdiction over the property by attachment and constructive notice to him; that summons in said suit was issued on May 24, 1893, against A. E. Drought and J. B. Watson, partners doing business as the Kissimee City Bank, and served upon A. E. Drought, but no service was effected or perfected upon J. B. Watson; that, on the rule day in June, Drought, individually, appeared by attorney, but no appearance was entered for Watson; that the clerk on said rule day entered a default against Watson for want of appearance, and afterwards, on June 20, 1893, entered a final judgment by default against him; that Drought on the rule day in July filed a plea denying that any partnership existed between him and Watson, upon which plea issue was joined on the rule day in August; that such plea was afterwards withdrawn in October, 1893, and judgment entered against Drought. It was then averred that the judgment against Watson pending the appearance and pleas of Drought was illegal and void. It was admitted that execution issued on October 6, 1893, on the judgment against Watson; that the property mentioned in the bill was levied upon thereunder, and sold to Greig, the complainant, who purchased it in his own right and as trustee, as set forth in the bill. The answers further alleged that the property was the property of Watson at the time the bank obtained its judgment, and that the execution issued thereon was the only legal execution against Watson.

Final hearing was had upon the original and supplemental bills, and the answers thereto, and a decree was rendered that a temporary injunction theretofore granted be made perpetual, and enjoining the defendant bank and William B. Jackson, its receiver, from enforcing the execution of the bank upon the premises described in the original and supplemental bills, and decreeing that the judgment of the bank was not a lien upon said premises. From that decree this appeal is prosecuted, and it is assigned as error (1) that the court erred in overruling a demurrer to the bill; (2) that the court erred in refusing to dissolve the

injunction on motion made on answer; (3) that the court erred in deciding the equities to be with complainant; (4) that the court erred in holding the judgment of complainant to be valid against the lands of Watson; (5) that the court erred in holding the judgment of complainant to be prior to that of the bank against the lands of Watson; (6) that the court erred in holding that appellants could not attack the validity of the judgment of complainant in this proceeding; and (7) that the court erred in entering the final decree. Other facts are stated in the opinion.

Beggs & Palmer, for appellants. E. D. Beggs, for appellees.

It ap

GLEN, C. (after stating the facts). Appellants abandon their first assignment of error, and discuss the remaining assignments together, contending that the title claimed by appellee Greig, trustee, derived from the sale of the real estate mentioned in the bills of complaint under the execution in favor of Greig against Watson is invalid, because, as they insist, the judgment upon which that execution issued is void. No replications were filed to the answers, and the cause was heard in the court below upon the original and supplemental bills and answers. pears that the judgment in favor of Greig against Watson was entered by the clerk on June 20, 1893, but the allegations do not clearly exclude the idea that the clerk may have entered the judgment by direction of the court. The suit in which that judgment was obtained was begun by Greig on May 24, 1893, against Watson and one Drought, as partners doing business under the firm name of Kissimee City Bank. The summons issued therein was served upon Drought only, and no service, either personal or by publication, was ever made in that suit upon Watson. On the return day of the summons a default was entered against Watson, and subsequently, on June 20th, the judgment against him, under which appellees claim title, was entered. This was a separate personal judgment against Watson individually. On the return day of the summons, Drought appeared, and thereafter filed his plea denying the partnership. In October, 1893, he withdrew this plea, and thereupon a separate judgment was entered against him personally in the same suit. It is claimed by appellant that under the facts stated the circuit court never acquired jurisdiction of the person of Watson, so as to enable it lawfully to enter the judgment of June 20, 1893.

The appellant claims the right to sell the lands mentioned in the bills under a judgment obtained by it in the same court, but subsequently to the judgment obtained by Greig. The suit in which that judgment was obtained was begun by appellant against Watson and Drought as partners under the firm name of Kissimee City Bank, and in that suit a writ of attachment was issued on 31 So.-16

May 16, 1893, which upon October 5, 1893, was levied upon the lands mentioned in the bills of complaint. Watson being a nonresident, service was obtained upon him by publication in said suit; and thereafter on October 4, 1894, final judgment against said Watson and Drought, partners as aforesaid, was obtained, and the property attached was thereby condemned to be sold. The execution under which the sale sought to be enjoined was attempted was issued upon this judgment.

It clearly appears that the lands described in the bills of complaint were the individual property of Watson at the time Greig's suit was begun, and the court is of opinion that the lands, under the circumstances stated, would be subject to sale under appellants' execution, unless the title derived by appellees from the sale under the execution issued upon the judgment of Greig against Watson is valid; and therefore the only question to be decided is whether that sale carried a valid title to the lands as against Watson, the judgment debtor. As Watson never appeared in the suit instituted by Greig, and no service of process, either personal or by publication, was ever had upon him therein, and no attachment or seizure of his property was attempted in that suit until after final judg ment was entered against him, it is clear that the court never acquired jurisdiction to render the judgment of June 20th, unless by virtue of the service upon his copartner as authorized by section 1017, Rev. St., such jurisdiction may be maintained. That section is as follows: "When any original process is sued out against several persons composing a mercantile or other firm, the service of said process on any one member of said firm shall be as valid as if served upon each individual member thereof, and the plaintiff may after service upon any one member as aforesaid proceed to judgment and execution against them all." The court has held that this statute is to receive a strict construction. McCallum v. Culpepper, 41 Fla. 107, 26 South. 187. It does not provide or contemplate that several or separate personal judgments against individual partners not served may be entered in suits against partners where one only is served. It authorizes one final judgment to be entered against all the members composing a firm where service is had upon one member only, or where one dies, and his death is suggested, under the provisions of section 993, Rev. St., against the surviving members of the firm upon such service; but the service authorized by that statute is by its terms made sufficient only for a final judgment of this character in cases where the members not served have not appeared in the action, or otherwise submitted themselves to the jurisdiction of the court. The separate personal judgment obtained by Greig against Watson cannot be supported by the service upon his copartner under this statute; and as the court had not