SAMS FOOD STORE, INC., APPELLANT,
v.
DAYSEE ALVAREZ, APPELLEE
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A trial court must vacate a default judgment entered without proper service of process, as service is indispensable to jurisdiction.
Appellant sought to set aside a default judgment, asserting it was never served. The trial court found no service occurred but denied the motion to se…
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PER CURIAM.
This is an appeal from an order of the Circuit Court of Dade County, Florida denying appellant's motion to set aside a default entered against it in a negligence action. Appellant denied that it had ever been served and the trial judge entered an order setting forth that the appellant had never been served, notwithstanding the sheriffs return showing service.
The sole point on appeal is whether the trial court may decline to vacate a default judgment against a defendant where it has found that the defendant never was served with process. We find error and reverse. Upon finding that the defendant had never been served with process, the trial court was required to conclude as a matter of law that the default was entered without jurisdiction over the defendant. As was stated in Bussey v. Legislative Auditing Committee, 298 So. 2d 219, 221 (Fla. 1st DCA 1974):
“Where the defendant does not enter a voluntary general appearance or otherwise waive service of process, the issuance and service of process is indispensable to the jurisdiction of the Court, even though the Court may have jurisdiction of the subject matter. * * * In short, the sufficient service of process initiates a case in the trial court, and until the case has been properly initiated, no determination of the adverse claims of the parties may be made.”
See also Mac Organization, Inc. v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979).
Accordingly, the trial court’s order refusing to set aside the default entered against appellant is reversed.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)…1980); McAlice v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979); Grahn v. Dade Home Services, Inc. 277 So. 2d 544 (Fla. 3d DCA 1973). On motion, a court may, at any time, relieve a party from a void final judgment. See Sams Food Store, Inc. v. Alvarez, 443 So. 2d 211 (Fla. 3d DCA 1983); Tucker v. Dianne Electric, Inc. 389 So. 2d 683 (Fla. 5th DCA 1980); McAlice. See also Ramagli Realty Co. v. Craver, 121 So. 2d 648 (Fla.1960) (the passage of time cannot make valid that which has been void). The Falkners filed a…
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Flavia Alvarez v. State Farm Mut. Auto Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994)…ichmond, 512 So. 2d 1129 (Fla. 4th DCA 1987), and that 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.…
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Tampa Assocs., Ltd. v. Miami Elevator Co., 545 So. 2d 458 (Fla. 3d DCA 1989)…ment as of right before responsive pleading relates back to original); see also Jonnet v. Dollar Savs. Bank, 530 F. 2d 1123, 1125 n. 5 (3d Cir.1976). Since an impropriety of service ipso fac-to defeats a default, Sams Food Stores, Inc. v. Alvarez, 443 So. 2d 211 (Fla. 3d DCA 1983); Mac Organization v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979), the judgment below is reversed for further consistent proceedings.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bussey v. The Legis. Auditing Comm. OF the Legis. of the State of Fla., 298 So. 2d 219 (Fla. 1st DCA 1974)
- The MAC Org., Inc. v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979)