EDWARD GETTINGER, PETITIONER,
v.
W. F. BLANTON, FRANK B. DOWLING, AND GEORGE T. CLARK, AS JUDGES OF THE COUNTY JUDGES' COURT IN AND FOR DADE COUNTY, FLORIDA, RESPONDENTS
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The Florida District Court of Appeal held that a nonresident executor could not be served via substituted service under a statute designed for actions accruing in estate administration, because the accounting sought was a personal action cognizable in equity, not within the estate's administration. The court made its rule nisi in prohibition absolute.
No, substituted service under § 732.47(2) is not valid for a personal action against a nonresident executor if that action did not accrue in the administration of the estate. Such an action is outside the scope of the statute's proviso.
“it appearing that the accounting sought is a personal action against the petitioner which did not "accrue" in the administration of the estate and, therefore, the petitioner could not be served personally through his agent designated under, the Statute.”
Establishes the primary reason for quashing the service.
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Join FLexlaw to unlock all legal intelligenceA nonresident executor was served under a Florida statute (§ 732.47(2)) for an accounting related to a New York law partnership in which he and the de…
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This court having heretofore issued its rule nisi in prohibition, prohibiting the county judges’ court from considering a rule to show cause directed against a nonresident executor in his said capacity and individually as to why he should not account for the activities of a New York law partnership in which he and the deceased had been members, service on said nonresident executor was made under the provisions of § 732.47(2), Fla.Stat.1959, F.S.A. Following a return to the rule nisi, and having heard argument, it is the opinion of the court that the rule should be made absolute, it appearing that the accounting sought is a personal action against the petitioner which did not “accrue” in the administration of the estate and, therefore, the petitioner could not be served personally through his agent designated under, the Statute.1 Moreover, it appears that th'e accounting involved here is one cognizable solely in equity (§ 6(3), Article V, of the Florida Constitution, F.S.A.). It is specifically not an accounting within the estate. *78Section 732.47(2), Fla.Stat.1959, F.S.A., providing a method of substituted service upon a nonresident executor is merely an additional method of service of process in whatever court an action may be filed in this State, and not a grant of additional jurisdiction to the county judges’ court.
Judgment in prohibition is awarded, but we assume it will not be necessary to issue the writ absolute in prohibition.