DAVID GREENBERG, APPELLANT,
v.
CLARA GREENBERG, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this interlocutory appeal, the Florida District Court of Appeal held that service by publication is not available in actions for alimony unconnected with divorce under Florida law, because the statute authorizing such service explicitly limits it to divorce and annulment cases. The court reversed the trial court's denial of the defendant's motion to dismiss.
Service by publication is not authorized in actions brought under section 65.09 for alimony unconnected with divorce, because the statute explicitly limits such service to divorce and annulment cases only. The defendant did not waive defenses by filing the motion to dismiss, as modern Florida procedure abolished the distinction between general and special appearances.
“Section 48.01, supra, does not by its express terms authorize service by publication in actions for alimony unconnected with divorce.”
Establishes the statutory limitation on service by publication in alimony cases
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavid Greenberg, a nonresident defendant, was served by publication in an alimony action brought by Clara Greenberg under section 65.09, Fla.Stat. Gre…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Alimony Unconnected With Divorce cases and more on FLexlaw
The appellant is a nonresident defendant in an action brought under section 65.-09, Fla.Stat., F.S.A., for alimony unconnected with divorce. Service of process was attempted by publication pursuant to section 48.01 et seq., Fla.Stat., F.S.A. The defendant moved to dismiss upon the grounds of “lack of jurisdiction over the person”, “insufficiency of process”, and “insufficiency of service of process.”1 From an order denying the motion this interlocutory appeal is taken.
We are presented with two points. First, is service by publication available in this action? Second, has the defendant made a general appearance, thus waiving the error urged? Section 48.01, supra, does not by its express terms authorize service by publication in actions for alimony unconnected with divorce. But appellee urges that the action is implicit in the provision authorizing such service in actions for divorce. The action for a limited divorce is not a part of the law of Florida.2 Therefore that portion of Section 48.01 providing for service of process by publication in cases “(4) For divorce or annulment of marriage;” does not include actions for alimony unconnected with divorce. A casus omissus can in no case be supplied by a court because that would be to make laws.3 We therefore hold that service by publication is not authorized in actions brought under Section 65.09, Fla.Stat., F.S.A.
A reading of Rule 1.11, supra and of Rule 12, Federal Rules of Civil Procedure, 28 U.S.C.A. reveals that our rule was taken from the latter. The plain intent of our rule is, as it was in the case of the Federal rule, to abolish the former distinction between general and special appearances.4 It is expressly provided that “No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.” 5 The filing of the motion to dis*610miss upon the grounds set forth did not require a special appearance as a protective measure.
The order appealed must he reversed and for the reasons set forth in this opinion the circuit court is directed to dismiss the cause.
Reversed.
CARROLL, CHAS., C. J., and HORTON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
-
First Wis. Nat'l Bank of Milwaukee v. Armand S. Donian and Phyllis Donian, 343 So. 2d 943 (Fla. 2d DCA 1977)…this distinction has been abolished. Ward v. Gibson, 340 So. 2d 481 (Fla.3d DCA 1976). The present method of raising the question of jurisdiction over the parties is by a responsive pleading or motion. Fla.R.Civ.P. 1.140(b); Greenberg v. Greenberg, 101 So. 2d 608 (Fla.3d DCA 1958). Since no responsive pleading or motion has been filed, we must determine whether the Donians by their actions before the court obtained some relief or material benefit sufficient to constitute a submission by them to the court’s j…
-
Zarcone v. Lesser, 190 So. 2d 805 (Fla. 3d DCA 1966)…ich provides: ‘A party who makes a motion under this rule may join with it the other motions herein provided for and then available to him.’ State ex rel. Eli Lilly & Company v. Shields, Fla.1955, 83 So. 2d 271; Greenberg v. Greenberg, Fla.App.1958, 101 So. 2d 608.” Whereupon, the order denying appellants motion addressed to jurisdiction is reversed, with directions to the trial to proceed to a determination of said motion on its merits. Reversed.…
-
Villanueva v. State, 200 So. 3d 47 (Fla. 2016)…be added to what the text states or reasonably implies.” State v. C.M., 154 So. 3d 1177, 1180 (Fla. 4th DCA 2015) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012)); see also Greenberg v. Greenberg, 101 So. 2d 608, 609 & n. 3 (Fla. 3d DCA 1958) (citing case for the principle that “[a] casus omissus can in no case be supplied by a court because that would be to make laws”). In other words, a matter that is not covered by a statute is to be treated as intention…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3d Cir. 1944)
- In re THE Est. OF William B. Hewitt, 153 Fla. 137 (Fla. 1943)
- Nolan v. Moore, 81 Fla. 594 (Fla. 1920)
- Webb v. Hill, 75 So. 2d 596 (Fla. 1954)
- Darwin C. Givens v. Givens, 121 Fla. 270 (Fla. 1935)
- Dovel v. Sloss-Sheffield Steel & Iron Co., 322 U.S. 740 (U.S. 1944)
- Rowan Cotton Mills Co. v. Commissioner of Internal Revenue, 322 U.S. 740 (U.S. 1944)
- Dutch v. Palm Beach Bridge Dist., 84 Fla. 504 (Fla. 1922)