JAMES E. BARTLETT, PLAINTIFF IN ERROR
v.
BERT C. COHN, DEFENDANT IN ERROR
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James Bartlett failed to appear or plead in response to Cohn's action, resulting in a default judgment and execution in 1927. The Florida Supreme Court reversed because the sheriff's return on the summons was insufficient to properly identify the defendant and establish jurisdiction, rendering the execution without proper legal predicate.
The trial court should have granted the motion to stay execution because the sheriff's return was insufficient to properly identify the defendant and bring him under the court's jurisdiction, meaning the execution lacked a proper legal predicate and constituted a denial of due process.
“By the facts disclosed in the record the return of the sheriff on the summons was-insufficient to properly identify the defendant and bring him under the jurisdiction of the court. It did not therefore amount to due process and since it was the basis of the execution the execution was without a proper predicate and should have been stayed.”
The core holding establishing that defective service violates due process and invalidates the resulting judgment and execution.
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Join FLexlaw to unlock all legal intelligenceIn May 1925, Cohn brought an action against Bartlett in common counts for $4000. Bartlett made no appearance or pleadings. A default judgment was ente…
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Terreil, C. J.
In May, 1925, defendant in error brought an action at law against' the plaintiff in error. The declaration was in the common counts and laid damages in the sum of $4000.00. There was no appearance or pleadings on the part of defendant below, plaintiff in error here, so judgment was taken by default and execution was issued thereon in March, 1927. A motion for stay of said execution was seasonably made and denied and writ of error was taken to that judgment.
The motion for stay of execution was made pursuant to Section 2829, Rev. Gen. Stats. (Sec. 4515 Comp. Gen. Laws of Fla. 1927) and is predicated on the insufficiency of the sheriff’s return to the summons ad respondendum and the further allegation that the record shows that the cause of action did not accrue until after the commencement of the action. Sec. 2829, Rev. Gen. Stats. of Fla., is as follows:
2829. Tlie Court before which an execution is returnable may, on a motion and notice to the adverse party, for good cause, upon such terms as the court may impose, direct a stay of the same, and the suspension of proceedings thereon.
This statute contemplates a liberal discretion on the part of trial courts in the matter of control over executions issued from them. Such control may go to the extent of staying the execution and suspending proceedings thereunder on terms directed by the court.
By the facts disclosed in the record the return of the sheriff on the summons was-insufficient to properly identify the defendant and bring him under the jurisdiction of the court. It did not therefore amount to due process and since it was the basis of the execution the execution was without a proper predicate and should have been stayed. The judgment below is accordingly reversed.
Reversed.
Ellis and Brown, J. J., concur. Whitfield, P. J., and Buford, J., and Long, Circuit-Judge, concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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City of Coral Gables v. Hepkins, 107 Fla. 778 (Fla. 1932)…. The object of the statute was to expressly authorize courts of law to correct, restrain and control their own processes, either in term time or vacation, without resort to equity. Barnett v. Hickson, 52 Fla. 457, 41 Sou. Rep. 606; Barlett v. Cohn, 97 Fla. 256, 120 Sou. Rep. 357. See also Higgins v. Driggs, 21 Fla. 103. But when an execution has been duly authorized and issued pursuant to a judgment regularly and validly rendered, and has been legally placed in the hands of an [*789] officer for service,…
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Lambert v. Heaton, 134 So. 2d 536 (Fla. 1st DCA 1961)…g been recognized. Fair v. Tampa Electric Co., (1946), 158 Fla. 15, 27 So. 2d 514, 516; Valdosta Milling Company v. Garretson (Fla.1951), 54 So. 2d 196, 197; City of Coral Gables v. Hepkins (1932), 107 Fla. 778, 144 So. 385; Bartlett v. Cohn (1929), 97 Fla. 256, 120 So. 357; Deauville Realty Company v. Tobin (Fla.App.1960), 120 So. 2d 198, 200. In the Fair case, appellants challenged the power of the trial court to stay execution on the ground that the time for new trial had expired and a new term of court…
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George A. Hormel & Co. v. Ackman, 117 Fla. 419 (Fla. 1934)…available one to raise the question here presented, on the facts of this case. McGee v. Ancrum, 33 Fla. 499, 15 So. 231; Houston v. Bradford, 35 Fla. 490, 17 So. 644; In re: Shapiro Holding Corporation, 15 Fed. (2nd) 601. See also Bartlett v. Cone, 97 Fla. 256, 120 So. 357. The affidavit of illegality, among other things, alleged that Waseman, the person upon whom the summons was served, was' not the business agent of the defendant, resident in the State of Florida, as set forth in the sheriff’s return,…
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