U. S. SLICING MACHINE CO.
v.
MALLARD
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A judgment creditor sought discovery via subpoenas and depositions under Florida Rule 1.40 to locate assets for execution before actually obtaining a writ of execution. The court held that Rule 1.40 discovery proceedings are supplemental to statutory execution procedures and cannot be used until execution has been placed with the sheriff and returned unsatisfied.
Rule 1.40 discovery procedures are supplemental and cumulative to, not a substitute for, the statutory execution and supplemental proceedings. A judgment creditor must first place a writ of execution in the sheriff's hands and obtain an unsatisfied return before initiating Rule 1.40 discovery proceedings.
“rule 1.40 is both supplemental and cumulative to the proceedings provided by sections 55.52 - 55.61, and while the rule has the effect of broadening the scope of examination of the judgment debtor and others, as well as dispensing with the statutory requirement that the court appoint a commissioner, it does not dispense with the necessity for first placing a writ of execution in the hands of the sheriff and the showing that the same has been returned unsatisfied”
The court's core holding establishing that Rule 1.40 discovery cannot precede the statutory execution process
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Join FLexlaw to unlock all legal intelligenceU.S. Slicing Machine Co. obtained a summary judgment against Mallard on March 9, 1959, for $4,111.90 plus costs, with orders that execution issue fort…
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This cause came on to be heard on defendant’s motion to quash subpoenas duces tecum and notices for taking depositions heretofore served by counsel for plaintiff herein, by which plaintiff seeks discovery in aid of execution, pursuant to rule 1.40 of the 1954 Florida rules of civil procedure.
A summary final judgment in favor of the plaintiff was entered herein on March 9, 1959 for the sum of $4,111.90, together with costs in the amount of $15.10, which provided that “execu*69tion issue forthwith”. It is undisputed that the plaintiff has not at any time caused execution to be placed in the hands of the sheriff, and therefore, that no return has been made thereon as is required by the provisions of sections 55.52 - 55.61, Florida Statutes 1957, in order to be entitled to institute proceedings supplemental to judgment.
A study of the provisions of rule 1.40 and the statutory proceedings above-mentioned, as well as the author’s comment under the rule in volume 30, Florida Statutes Annotated, leads this court to the conclusion that rule 1.40 is both supplemental and cumulative to the proceedings provided by sections 55.52 - 55.61, and while the rule has the effect of broadening the scope of examination of the judgment debtor and others, as well as dispensing with the statutory requirement that the court appoint a commissioner, it does not dispense with the necessity for first placing a writ of execution in the hands of the sheriff and the showing that the same has been returned unsatisfied. Such a construction is not inconsistent with the purpose of the rule to provide a flexible and inexpensive method for uncovering assets against which to make levy.
Accordingly, it is ordered and adjudged that the motion to quash subpoenas duces tecum and notices for taking depositions should be, and the same is hereby, granted, and the subpoenas duces tecum heretofore issued by this court, pursuant to plaintiff’s request filed herein April 22, 1960, should be, and the same are hereby, quashed, and the taking of the deposition of William “Bill” Montgomery, heretofore noticed for Friday, April 29,1960, is hereby likewise quashed.