O. H. OVERHOLSER AND NOLA OVERHOLSER, APPELLANTS,
v.
FRANCES OVERSTREET, TRUSTEE ET AL., APPELLEES
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In a mortgage foreclosure proceeding, the trial court denied defendants' motion to set aside a default judgment entered by the clerk. The appellate court reversed, holding that the default was void because the clerk failed to comply with statutory requirements for constructive service of process, thereby depriving the court of jurisdiction.
The court held that the default was void and subject to collateral attack because the clerk failed to comply with statutory requirements. The court reversed the denial of the motion to set aside the default and remanded for further proceedings, holding that defendants were not required to demonstrate a meritorious defense under Rule 1.540 when the clerk lacked statutory authority to enter the judgment.
[1] A default entered prematurely by a clerk is void and subject to collateral attack.
[2] A clerk's authority to enter a default is statutory, and official action must conform to statutory requirements to be binding.
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Join FLexlaw to unlock all legal intelligence“In this case, the premature default entered by the clerk was void and subject to collateral attack.”
Establishes the core holding that a default entered before the statutory deadline is void
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Join FLexlaw to unlock all legal intelligencePlaintiffs attempted to serve defendants personally through the Sheriff but were unsuccessful. After obtaining an elisor who also failed to effect per…
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NESBITT, Judge.
The defendants appeal from an order denying their motion to set aside a default entered against them in a mortgage foreclo sure proceeding.1 The plaintiffs had been unsuccessful in securing service of process upon the defendants personally through the Sheriff of Dade County. Upon sworn affidavit, plaintiffs obtained the appointment of an elisor.2 The elisor was also unsuccessful in serving the defendants personally and, based upon his affidavit of that fact, plaintiffs procured an order authorizing constructive service of process pursuant to Section 49.041(3)(c), Florida Statutes (1979). The notice of action published by the clerk required the defendants to file their answer on or before September 28, 1979. Default was entered by the clerk against the defendants on September 25, 1979.
Mr. Overholser discovered a copy of the notice of action in his mail during the second week of October 1979.3 The notice of action was placed in the hands of his attorney who filed a motion to set aside the default on October 25, 1979. The motion was denied on November 26, 1979 and this interlocutory appeal was perfected to review that order. In the notice of action, the court was required to fix a date by which the defendants were to file their written defenses. Such date is to be not less than twenty-eight nor more than sixty days after the first publication of the notice of action. § 49.09, Fla.Stat. (1979). In this case, the premature default entered by the clerk was void and subject to collateral attack. Kroier v. Kroier, 95 Fla. 865, 116 So. 753 (1928).
The clerk’s authority is entirely statutory, and his official action, to be binding upon others, must be in conformity with the statutes. Security Finance Co. v. Gentry, 91 Fla. 1015, 109 So. 220 (1926). In Kroier v. Kroier, the court stated:
-But where a special statutory authority or jurisdiction, which is more of a ministerial than of a judicial nature, is conferred upon the clerk of the court to render judgments which when lawfully entered become the judgments of the court, the statutory conditions precedent to the exercise of such authority must exist in order to legalize its exercise.
116 So. at 756.
The clerk’s failure to track the requirements of the statute precluded the court from acquiring jurisdiction through constructive service of process. Under these circumstances, it was unnecessary for the defendants to demonstrate a meritorious defense as required by Florida Rule of Civil Procedure 1.540 in order to have the default vacated and set aside. Chester, Blackburn & Roder, Inc. v. Marchese, 383 So. 2d 734 (Fla.3d DCA 1980); Mac Organization, Inc. v. Harry Rich Corp., 374 So. 2d 81 (Fla.3d DCA 1979) and Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla. 4th DCA 1974).
For the foregoing reasons, the order denying the motion to set aside the default is reversed and the cause remanded for further proceedings.
. Fla.R.App.P. 9.130(a)(3)(C)(iv).
. Fla.R.Civ.P. 1.070(b).
. We are cognizant of the fact that the clerk failed to note in the progress docket the date of mailing of the “notice of action” to the defendants as required under Section 49.12, Florida Statutes (1979). Additionally, the statute requires the “notice of action” to be mailed, postage prepaid, to the defendant within ten days after the making or posting of notice. This fact is supplied as a matter of information and is not deemed critical in the disposition of this case.
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Nardi v. Nardi, 390 So. 2d 438 (Fla. 3d DCA 1980)…(Mo.App.1946); Surety Ins. Co. of California v. State, 514 S.W. 2d 454 (Tex.Cr.App.1974); Oden & Co. v. Vaughn Grocery Co., 34 Tex.Civ.App. 115, 77 S.W. 967 (1903); 49 C.J.S. Judgments §§ 207, 278 (1947); see also, Overhol- [*441] ser v. Overstreet, 383 So. 2d 953 (Fla. 3d DCA 1980); Ferlita v. State, 380 So. 2d 1118 (Fla. 2d DCA 1980). Contrary to the thrust of the ruling below, a prematurely entered default should be vacated even if the defendant does not move to do so or otherwise respond until the appropr…
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Pedro Realty, Inc. v. Silva, 392 So. 2d 1005 (Fla. 3d DCA 1981)…nd is appealable. We adopt the reasoning found in Judge Hersey’s special concurring opinion1 in Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So. 2d 281 (Fla.4th DCA 1980). We find some further, but slight, support in Overholser v. Overstreet, 383 So. 2d 953 (Fla.3d DCA 1980), a case in which we specifically accepted jurisdiction under Rule 9.130(a)(3)(C)(iv) of an appeal from an order denying a motion to set aside a default, but in which our jurisdiction was apparently not questioned. We find complete…
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Miceli v. Miceli, 489 So. 2d 1235 (Fla. 2d DCA 1986)…7 So. 636 (1921). Second, because the wife was not in default on the day the husband obtained a final judgment, the court also erred in refusing to set the judgment aside. Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984); Overholser v. Overstreet, 383 So. 2d 953 (Fla. 3d DCA 1980). We, accordingly, reverse and remand for proceedings consistent herewith. Reversed and remanded. FRANK and SANDERLIN, JJ., concur.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kroier v. Kroier, 95 Fla. 865 (Fla. 1928)
- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)
- Morgan v. State, 289 So. 2d 744 (Fla. 4th DCA 1974)
- Sec. Fin. Co. v. Gentry, 91 Fla. 1015 (Fla. 1926)
- Mo-Con Props., Inc. v. Am. Mech., Inc., 289 So. 2d 744 (Fla. 4th DCA 1974)
- The MAC Org., Inc. v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979)