LAWRENCE HYMAN, AS EXECUTOR OF THE ESTATE OF JULE HYMAN, DECEASED, APPELLANT,
v.
GOLDIE CANTER, ETC., ET AL., APPELLEES
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The court affirmed the trial court's orders setting aside a default judgment against Canter obtained through ineffective service by publication and vacating a judgment against banks that depended on the invalid default judgment.
Service of process by publication is ineffective to obtain personal jurisdiction when the defendant's residence is known, and a defendant need not show a meritorious defense to set aside an invalid default judgment.
[1] Service of process by publication is ineffective to obtain personal jurisdiction over a defendant whose residence is known to the plaintiff.
[2] When an order of default is invalid, a defendant need not demonstrate a meritorious defense to obtain relief from the default and default judgment.
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Join FLexlaw to unlock all legal intelligenceHyman, as executor of an estate, obtained a default judgment against Canter through service by publication despite knowing Canter's residence, and obt…
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PER CURIAM.
The orders of the trial court setting aside the default and default judgment entered against Canter and the final judgment on the pleadings entered against the appellee-banks are affirmed upon a holding that (1) the service of process by publication against Canter, whose residence was known to the Plaintiff, was ineffective to obtain personal jurisdiction over Canter and the default and consequent default judgment against her were, as admitted by Hyman, erroneously entered, Sections 49.031 and 49.041, Florida Statutes (1979); (2) where an order of default is invalid, a defendant need not show a meritorious defense in order to be entitled to a setting aside of the default and default judgment, 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 (3) the final judgment on the pleadings against the banks, since based on the default judgment against Canter, was correctly vacated, Florida Rule of Civil Procedure 1.540(b)(5) (providing that a court may relieve a party from a final judgment where a prior judgment “upon which it is based has been reversed or otherwise vacated”), see Riley v. Gustinger, 252 So. 2d 583 (Fla. 3d DCA 1971).
Affirmed.
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Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984)…(Fla. 4th DCA 1974). [*538] Accordingly, default was entered prematurely in the case at bar. In such circumstances, a defendant need not show either excusable neglect or a meritorious defense in order to have the default set aside. Hyman v. Canter, 389 So. 2d 322, 323 (Fla. 3d DCA 1980); Turner v. Allen, 389 So. 2d 686, 687 (Fla. 5th DCA 1980). Since the default was untimely entered, the entry of final judgment was improper, and should have been set aside by the court. Appellee attempts to defend the trial…
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Int'l Energy Corp. v. Darrel Hackett and Ralph Dwake, 687 So. 2d 941 (Fla. 3d DCA 1997)…n of the due process notice requirement of Rule 1.500 must be set aside without any regard as to whether a meritorious defense is presented or excusable neglect is established. Yellow Jacket Marina, Inc., 670 So. 2d at 171; see also Hyman v. Canter, 389 So. 2d 322 (Fla. 3d DCA 1980) (holding where order of default is found to be invalid, defendant need not show meritorious defense). Put another way, the “failure to produce proof of service of the required notice of application for default alone renders the en…
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Flavia Alvarez v. State Farm Mut. Auto Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994)…at the default and default judgment were therefore void and must be set aside. See Falkner v. AmeriFirst Fed. Sav. & Loan Ass’n, 489 So. 2d 758 (Fla. 3d DCA 1986); Sams Food Store, Inc. v. Alvarez, 443 So. 2d 211 (Fla. 3d DCA 1983); Hyman v. Canter, 389 So. 2d 322 (Fla. 3d DCA 1980). Reversed.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)
- The MAC Org., Inc. v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979)
- Riley v. Gustinger, 252 So. 2d 583 (Fla. 3d DCA 1971)