CLEMENTS NAVAL STORES COMPANY, A CORPORATION, W. G. CLEMENTS, J. L. MCWILLIAMS, J. D. SIRMANS, R. C. REAMS AND J. B. MOZINGO, PLAINTIFFS IN ERROR,
v.
J. S. BETTS COMPANY, A CORPORATION, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a lower court's judgment, holding that the evidence presented was insufficient to overcome the presumption of validity of a sheriff's return of service. The case involved a dispute over whether proper service of process had been made.
No, the evidence was not sufficient to impeach the sheriff's return. The court held that clear and convincing evidence is required to impeach a sheriff's return, and the evidence in this case did not meet that standard.
“To impeach the return of a sheriff, made under the sanction of official oath and responsibility, clear and convincing-evidence is required.”
Establishes the legal standard for challenging a sheriff's return of service.
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Join FLexlaw to unlock all legal intelligenceThe plaintiffs in error filed an affidavit of illegality challenging an execution, alleging that service of summons ad respondendum had not been made …
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[*50] West, J.
This is a proceeding* upon an affidavit of illegality of an execution under the statute (Sec. 2828, Rev. Gen. Stats, of Fla.). The decisive question is one of fact. The allegations of the affidavit are traversed by the plaintiff in execution. Upon a hearing the court sustained the traverse of the affidavit and entered judgment on the bond. To review this judgment writ of error was taken.
The question involved is whether service of summons ad respondendum was made upon the defendant in the suit. On the one hand it is denied that service was made, but on the other it was affirmed that service was duly made. The evidence submitted on the point is in conflict. For the satisfaction of the litigants and their counsel we might recite and analyze the evidence, but it is not conceived that to do so would be beneficial for any other purpose.
To impeach the return of a sheriff, made under the sanction of official oath and responsibility, clear and convincing-evidence is required. Barnes v. Willis, 65 Fla. 363, 61 South. Rep. 828; Tidwell v. Witherspoon, 18 Fla. 282. Considering all the evidence in this case, it is not of the character required by this rule. On the contrary, the evidence is ample to sustain the findings of the court below.
Affirmed.
Taylor, C. J., and Whitfield, Ellis and Browne, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Slomowitz v. E.O. Walker and Geneva Walker, 429 So. 2d 797 (Fla. 4th DCA 1983)…of proof. Florida cases have consistently held that: To impeach the return of a sheriff, made under the sanction of official oath and responsibility, clear and convincing evidence is required. Clements Naval Stores Co. v. B. Betts Co., 85 Fla. 49, 95 So. 126 (1923); Golden Gate Development Co. v. Ritchie, 140 Fla. 103, 191 So. 202 (1939); Winky’s Inc. v. Francis, 229 So. 2d 903 (Fla. 3d DCA 1969). We recognize that the passage of time and the number of summonses served would naturally dim a process ser…
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Henderson v. State, 94 Fla. 318 (Fla. 1927)…o. 287; Dixon v. State, 79 Fla. 586; 84 So. 541; Settles v. [*344] State, 75 Fla. 296, 78 So. 287; Seymour v. State, 66 Fla. 133, 63 So. 7; McQuagge v. State, 80 Fla. 768, 87 So. 60; Gee v. State, 61 Fla. 22, 54 So. 458; Cooley v. State, 85 Fla. 46, 95 So. 126; Joyner v. State, 85 Fla. 384, 96 So. 155; Shuler v. State, 84 Fla. 414, 93 So. 672; Crawford v. State, 86 Fla. 94, 97 So. 288; Jacques v. State, 86 Fla. 137, 97 So. 380; White v. State, 84 Fla. 677, 95 So. 113; Holmberg v. Hardee, 90 Fla. 787, 108…
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Smith v. McEwen, 119 Fla. 588 (Fla. 1935)…hatever form assailed, requires clear and convincing proof — the return of due service being con- [*599] elusive as to jurisdiction of the parties unless the same is impeached by legally satisfactory evidence. Clements Naval Stores Co. v. Betts Co., 85 Fla. 49, 95 Sou. Rep. 126. On the same principle, and for the same reasons, the recital found in a notary public’s certificate of acknowledgment of a deed or mortgage setting forth the jurisdictional fact that a named person personally appeared before such…1 / 2
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
- Barnes v. Willis, 65 Fla. 363 (Fla. 1913)
- Tidwell v. Witherspoon, 18 Fla. 282 (Fla. 1881)