ILENE KIRSHNER, APPELLANT,
v.
LOUIS SHERNOW, APPELLEE
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Ilene Kirshner appeals a trial court order abating her personal injury action against Louis Shernow due to improper service of process. The appellate court reverses, holding that Shernow waived any defect in service by filing a general appearance and answer without first challenging the court's jurisdiction.
Yes. The defendant waived any objection to the service of process by entering a general appearance through filing an answer without first filing a motion attacking the court's jurisdiction over his person. Accordingly, the trial court erred in granting the motion to abate.
[1] A general appearance by a defendant, without simultaneously challenging the court's jurisdiction over their person, waives any defects in service of process.
[2] Filing an answer to a complaint constitutes a general appearance, thereby waiving the right to later move for abatement based on improper service of process.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The defendant, having entered a general appearance by filing an answer without filing therewith a motion attacking the jurisdiction of the court over his person, has waived the service of process.”
Establishes the legal rule that a general appearance without a contemporaneous motion challenging jurisdiction constitutes a waiver of service defects.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKirshner filed a complaint on August 10, 1977, seeking damages for personal injuries sustained as a passenger in an automobile owned by Shernow and op…
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PEARSON, Judge.
The plaintiff, llene Kirshner, appeals an order of the trial court entitled “Order Granting Motion in Abatement.” In this order, the court finds:
“1. That the court does not have jurisdiction of the person of Louis Shernow, named as defendant herein, because (a) said defendant was not served personally and (b) process was served on Lila Sher-now, defendant’s spouse, at her place of business rather than at defendant’s place of abode, as by statute required; and
“2. That defendant is entitled to abatement of the action, pending proper service, with leave to answer or otherwise to defend, de novo.”
The plaintiff contends that the court erred in granting defendant’s motion to abate the proceedings because the defendant had already appeared generally in the cause and filed his answer prior to seeking to abate the action because of failure to serve process in accordance with the statute. The record shows that a complaint was filed by llene Kirshner on August 10, 1977, claiming damages for personal injuries received as a passenger in an automobile owned by the defendant and operated by another person with permission of the owner. It was claimed that her injuries were caused by the negligent operation of the automobile. Thereafter, on August 23, 1977, the defendant filed with the clerk of the circuit court a handwritten letter in which he denied the allegation that the automobile was operated with his permission and asked that the letter be filed in the cause. Thereafter, on January 20, 1978, attorney for the defendant filed a motion to abate the cause alleging that personal service was not made on the defendant in accordance with the statute and the order appealed was entered thereon.1
The defendant, having entered a general appearance by filing an answer without filing therewith a motion attacking the jurisdiction of the court over his person, has waived the service of process. See Florida Rule of Civil Procedure 1.140; Krasnosky v. Krasnosky, 282 So. 2d 186 (Fla. 1st DCA 1973).
Reversed and remanded with directions to deny the motion to abate and for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
. The defendant has not favored this court with a brief.
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Weatherhead Co. v. Coletti, 392 So. 2d 1342 (Fla. 3d DCA 1980)…and secure the relief sought.” McKelvey v. McKelvey, 323 So. 2d 651, 653 (Fla. 3d DCA 1976); see also, Gelkop v. Gelkop, 384 So. 2d 195, 203 (Fla. 3d DCA 1980) (Schwartz, J., dissenting in part, specifically concurring in part); Kirshner v. Shernow, 367 So. 2d 713 (Fla. 3d DCA 1979); Lawrence v. Lawrence, 130 So. 2d 639 (Fla. 3d DCA 1961). Such statements do not, it is true, constitute a determination that the converse is also correct-that is, that a document which seeks no relief whatever and is not itself i…
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Valle v. Mador, 478 So. 2d 416 (Fla. 3d DCA 1985)…urt. Walters; Stewart. A defendant may waive the right to proper service and thereby forfeit his right to challenge the trial court’s jurisdiction over his person. Fundaro v. Canadiana Corp., 409 So. 2d 1099 (Fla. 4th DCA 1982); Kirshner v. Shernow, 367 So. 2d 713 (Fla. 3d DCA 1979); Krasnosky v. Krasnosky, 282 So. 2d 186 (Fla. 1st DCA 1973). Venue statutes, on the other hand, seek to restrict litigation to the forum which will cause the least amount of inconvenience and expense to parties required to defend…
Authorities Cited
- Manor v. State, 282 So. 2d 186 (Fla. 1st DCA 1973)