J. F. CONWAY, INDIVIDUALLY, AND J. F. CONWAY, DOING BUSINESS AS CONWAY TRUCKING COMPANY, APPELLANTS,
v.
WILLIAM D. SPENCE, APPELLEE
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The court held that mailing copies of the summons and complaint to non-resident defendants before service on the Secretary of State, without notice of such service, does not constitute substantial compliance with the statutory requirement for notice.
Plaintiff sued non-resident defendants for injuries from an automobile accident, attempting substituted service under a statute. The defendants challe…
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This is an interlocutory appeal in a common law action from an order rej ecting the defendants’ challenge of jurisdiction over them.1
The defendants were non-residents. The complaint was one for damages for personal *427injuries received in an automobile accident, for which substituted service on the nonresident defendants was allowed.2
The appellants, who were the defendants below, raise two points. They contend that service was not effected under the statute, asserting that two requirements were not met. First, that the provision for them to be given notice of service on the Florida Secretary of State was not complied with. Second, that summons served on the Secretary of State was not returned as and within the time provided for in the statute.
The record discloses that the alias summons relied upon was issued December 31, 1951; and plaintiff’s counsel mailed the summons to the Secretary of State. On January 2, 1952, plaintiff’s counsel forwarded to the defendants in Atlanta, Georgia, copies of the amended complaint and of the summons which had been issued. At that time the summons had not been served. Service of the summons was effected the following day, January 3, 1952, when the Secretary of State accepted service.3
Under the applicable rule compelling strict construction of, and substantial compliance with the statute for substituted service on non-residents, as such statute is in derogation of common law rights, the required substantial compliance leaves no room for dispensing with the directive provisions which are set out in the statute as the steps necessary to be taken to perfect service. State ex rel. Palmer v. Gray, 92 Fla. 1123, 111 So. 242; Cherry v. Heffernan, 132 Fla. 386, 182 So. 427; McGee v. McGee, 156 Fla. 346, 22 So. 2d 788; Ogden v. Ogden, 159 Fla. 604, 33 So.2d 870, 875; Napoleon B. Broward Drain. Dist. v. Certain Lands, etc., 160 Fla. 120, 33 So.2d 716; Gallant v. McKinney, D.C.S.D.Fla.1952, 104 F.Supp. 277; 72 C.J.S. Process § 43; 3 Fla.Jur., Automobiles, etc. § 98; 25 Fla.Jur., Process, § 23.
We must reject the appellee’s contention that mailing a copy of the complaint and of the summons to the non-resident defendants amounted to giving them “notice of such service.” The notice which the statute requires, is one which will impart to the non-resident defendant the information that service of such process has been made on the Florida Secretary of State. In the absence of the required notice to them, the defendants were left with no certainty as to when they should answer to avoid a default, or, for that matter, as to whether any service of that summons was made or would be made on the Secretary of State. Therefore, we must uphold appellants’ contention that the forwarding to them, as non-residents, of copies of the summons before it was served on the Secretary of State, with no notice as to the fact of service, was not a substantial compliance with the statutory requirement for “notice of such service” of process on the Secretary of State. Cherry v. Heffernan, supra, 132 Fla. 386, 182 So. 427; Bond v. Golden, 10 Cir.1959, 273 F.2d 265; State ex rel. Stevens v. Grimm, 192 Wis. 601, 213 *428N.W. 475. See Dusminski v. Ladenheim, D.C.E.D.N.Y.1942, 43 F.Supp. 139; Bucholz v. Hutton, D.C.Mont.1957, 153 F.Supp. 62, 66-67; Alopari v. O’Leary, E.D.Pa. 1957, 154 F.Supp. 78; Brenner v. Margolics, D.C.Mun.App.1953, 102 A.2d 300; 61 C.J.S. Motor Vehicles g 502e(2).
We hold, therefore, for the reason stated,4 the order denying the defendants’ motion to dismiss for want of jurisdiction is reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Reversed.
HORTON, C. J., and PEARSON, J., concur.
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Jones v. Nan Gay Denmark and John A. Denmark, 259 So. 2d 198 (Fla. 3d DCA 1972)…o whether there was compliance with the procedure outlined in § 48.161 Fla.Stat, F. S.A. for effecting the substituted service that was undertaken. Wm. E. Strasser Construction Corp. v. Linn, Fla.1957, 97 So. 2d 458; Conway v. Spence, Fla.App. 1960, 119 So. 2d 426. The trial court does not appear to have passed on the merits of those matters, having held, instead, that the defendants’ challenge of the jurisdiction of the person was waived by the inclusion in their motion of a contention relating to venue. The…
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Parish Mortg. Corp. v. Lowry W. Davis and Guion T. De Loach, 251 So. 2d 342 (Fla. 3d DCA 1971)…ere the requirement for mailing a copy of the summons to the defendant “forthwith” was not complied with and the notice thereof was not mailed to the defendant until 34 days after the service on the official. See also Conway v. Spence, Fla.App.1960, 119 So. 2d 426. The defect in the service appeared on the record. In the absence of service the court was without jurisdiction over the defendant corporation. State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649, 652. The judgment was void and subject t…
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Ferlita v. State, 380 So. 2d 1118 (Fla. 2d DCA 1980)…. Particularly applicable to the case at bench is the rule that the doctrine of substantial compliance “leaves no room for dispensing with the directive provisions which are set out in a statute as the steps necessary to be taken.” Conway v. Spence, 119 So. 2d 426 (Fla. 3d DCA 1960). Moreover, we think that even more literal adherence is required when a statute spells out the steps to be taken before the clerk of a court is authorized to enter a judgment. A clerk acts in a purely ministerial capacity, and ha…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DeWitt T. Gray, 92 Fla. 1123 (Fla. 1927)
- Ogden v. Clement Moore Ogden, 159 Fla. 604 (Fla. 1947)
- Cherry v. Heffernan, 132 Fla. 386 (Fla. 1938)
- Millie Dooley McGee v. McGee, 156 Fla. 346 (Fla. 1945)
- Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which taxes due, 160 Fla. 120 (Fla. 1948)
- GAY Gainer and H. A. Gainer v. Town OF Altamonte Springs, 156 Fla. 346 (Fla. 1945)
- Bond v. Golden, 273 F.2d 265 (10th Cir. 1959)