JOHN MERCER, APPELLANT,
v.
HERBERT H. BOOBY, APPELLEE

Fla. | 1856-03-01
6 Fla. 723 Florida Supreme Court (1856) Positive Treatment
Cited by 4 cases

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Synopsis

The Florida Supreme Court affirmed a judgment against a garnishee, holding that the garnishee's appearance in court waived any defects in the service of the garnishment writ. This decision established that the rule regarding appearance curing service defects applies to garnishment writs as well as ordinary summons.


Holding

Yes, the garnishee's appearance in court cures any defects in the service of the writ of garnishment.


Key Quotes

“The error assigned is that the endorsement on the writ [*724] does not show how the service was perfected, whether by delivery of a copy or otherwise.”

This quote states the appellant's sole assignment of error regarding the sufficiency of the service endorsement.

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Facts & Procedural History

John Mercer, the appellant and garnishee, was served with a writ of garnishment. At the subsequent court term, both parties appeared by their attorney…

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Opinion of the Court
DU TONT, J.,

delivered the opinion of the Court.

The appellant John Mercer was summoned by a writ of garnishment, to answer and set forth what goods and chat-ties, rights and credits, money or effects were in his possession or control, belonging to Philip S. Lever, the plaintiff in execution. The indorsement on the writ is as follows : “ Served—-July 25th, 1854—E. T. Kendrick, Sheriff.” The record shows that at the fall term, 1854, the parties appeared by their attorneys and that a judgment was entered against the garnishee for the want oí a plea or answer. The error assigned is that the endorsement on the writ does not show how the service was perfected, whether by delivery of a copy or otherwise.

The statute (vide Thompson’s Digest, 372,) provides that the service of the writ of garnishment shall he the same as is provided in the case of a summons ad respondendum, and it has been heretofore decided by this court that the appearamce of a defendant in a suit cures any defect in the service of the writ. (D. B. Wood & Co. vs. Bk. of the State of Geo., 1 Fla. Rep., 378.) We can perceive no good reason why the same rule should not he applicable to the service of writs of garnishment.

Therefore let the judgment of the Circuit Court he affirmed.


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Citator

Cited By

  • Bartley v. Bingham, 34 Fla. 19 (Fla. 1894)
  • …“res”). Contrary to that position, the Florida Supreme Court has previously held that a garnishee can waive the requirement that the court obtain jurisdiction only through strict compliance with service of process requirements. In Mercer v. Booby, 6 Fla. 723, 723-24 (1856), the question presented was whether defects in service of process of a writ of garnishment was waived by the general appearance of a garnishee. In Mercer, the garnishee entered a general appearance before the trial court, but failed t…

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