HELEN T. KLOSENSKI, APPELLANT,
v.
JOSEPH THOMAS FLAHERTY, A/K/A TOM FLAHERTY, APPELLEE
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This interlocutory appeal addresses whether a deputy constable's affidavit of service is sufficient to establish valid service of process when the original summons is never returned to the court. The court holds that the return of the writ is a necessary procedural requirement for establishing jurisdiction over a defendant, despite statutory language suggesting failure to return does not affect validity of service.
The court holds that the return of the writ is necessary to establish valid service of process and jurisdiction, even though the statute provides that failure to make proof of service shall not affect the validity of service. The return is essential evidence by which the court is informed that the defendant has been served and is necessary for determining procedural deadlines.
“It is not the return, however, but the service of the writ, that gives jurisdiction. The return is merely evidence by which the court is informed that the defendant has been served.”
Establishes the distinction between service (which gives jurisdiction) and the return (which is the evidence of service)
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Join FLexlaw to unlock all legal intelligenceA complaint for personal injuries from an automobile accident was filed on December 19, 1957. Approximately four months later, a deputy constable file…
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This is an interlocutory appeal from an order quashing the purported service of process upon the appellee.
*686A complaint was filed in the Circuit Court of Dade County, on December 19, 1957, to recover damages for personal injuries sustained in an automobile accident. The original summons was never returned to the court out of which it was issued. Approximately four months after the filing of the complaint and issuance of the summons, an affidavit was filed by a deputy constable, stating that service had been effected and that he had executed a return of service upon the original summons and forwarded the same to the attorneys for appellant. It was never received. The appellee thereupon filed a motion to dismiss, urging the lack of jurisdiction over the appellee, the insufficiency of process and the insufficiency of the service of process. This motion was granted.
Approximately eight months after the filing of the complaint, a second affidavit similar to the first was filed by the deputy constable and the appellant moved for a rehearing in light of the new affidavit. Rehearing was granted, the second affidavit considered and the order now appealed was entered quashing the service.
The appellee contends that there being no return of the writ or summons, the affidavit by the deputy constable of service upon the appellee is insufficient service of process and does not operate to give the court jurisdiction over the appellee. On the other hand, the appellant contends that proof of the service of process is sufficient notwithstanding the loss of or the failure to make a return of the writ to the court from which it issued.
Both parties to this appeal, as well as the court, have been unable to find wherein the precise question involved here has been passed upon by the Supreme Court of Florida or other appellate courts of this state.
Rule 1.3(c) of the Florida Rules of Civil Procedure, 30 F.S.A., provides in part:
“ * * * The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. If service is made by a person appointed by the court for such purpose, he shall make affidavit thereof. Failure to make proof of service shall not affect the validity of the service[Emphasis supplied]
Sections 47.47 and 47.48, Fla.Stat., F.S.A., provide for the return of the execution of process as well as the return of the non-execution of process by the officer in whose hands the process has been placed for service. Obviously, if the summons or writ is not returned to the court out of which it issued, then there is no way to ascertain whether or not the writ was served. In 42 Am.Jur., Process, § 117, p. 104, the author, in commenting upon the return and proof of service, said:
“The return of process is essential to an effectual service thereof. To authorize a judgment against a person who has not appeared and answered or otherwise submitted himself to the jurisdiction of the court, there must be not only service on such person, but also a legal return of such service. It is not the return, however, but the service of the writ, that gives jurisdiction. The return is merely evidence by which the court is informed that the defendant has been served.”
If the return of the writ were not necessary, then we do not feel that the provisions of Rule 1.3(c), supra, to the following effect:
“The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process[Emphasis supplied]
would have any meaning. Without the return of the writ, the court would be unable to determine when the defendant would be required to plead or the plaintiff would be entitled to a default for such failure. Thus, *687it can be seen that the return of the writ is necessary to the orderly continuance of procedural steps required by the rules. If the summons is returned unexecuted or improperly executed, the plaintiff is entitled to such additional summons as is necessary to effect service. Rule 1.3(d), Florida Rules of Civil Procedure.
Accordingly, we conclude that the order appealed should be and it is hereby affirmed.
Affirmed.
CARROLL, CHAS., C. J., and PEARSON, J., concur.
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Klosenski v. Flaherty, 116 So. 2d 767 (Fla. 1959)…ROBERTS, Justice. In Klosenski v. Flaherty, Fla.App. 1959, 110 So. 2d 685, the District Court of Appeal, Third District, affirmed an order of the trial court quashing upon motion of counsel for defendant a purported service of summons upon defendant. The facts were that the original summons issued by the clerk — and, acco…
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Wien v. Quayside Realty, Inc., 462 So. 2d 569 (Fla. 3d DCA 1985)…which awakened the case from its previous dormancy, Klosenski v. Flaherty, 116 So. 2d 767, 769 (Fla.1959)— did not occur until more than twenty days after service, but see sec. 48.194, Fla.Stat. (1983); Fla.R.Civ.P. 1.070(b); Klosenski v. Flaherty, 110 So. 2d 685, 686 (Fla. 3d DCA 1959), quashed in part on other grounds, 116 So. 2d 767 (Fla.1959), and that Florida defense counsel, who had been monitoring the action, filed motions to dismiss and to set aside the default very shortly after the filing had come…
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Klosenski v. Flaherty, 117 So. 2d 7 (Fla. 3d DCA 1960)…PER CURIAM. Whereas the decision and judgment of this court was entered on the 7th day of April, 1959 (110 So. 2d 685) affirming an order of the Circuit Court of the Eleventh Judicial Circuit of Dade County, Florida, entered October 28, 1958 in the above styled cause, and Whereas, on.review of this court’s decision and judgment by petition for cer-tiorari, the Sup…