GEORGE P. COBB, APPELLANT,
v.
SANTA ROSA COUNTY, FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, BY AND THROUGH THE BOARD OF COUNTY COMMISSIONERS OF SANTA ROSA COUNTY, FLORIDA, AND ITS DULY AUTHORIZED AND ACTING MEMBERS, TO-WIT: WILSON WHITFIELD, EZRA JOHNSON, MACON WISE, F. M. FISHER AND E. M. FOWLER, APPELLEE
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Santa Rosa County sued George Cobb to enjoin him from interfering with a public road, but served him in Escambia County where he resided. The court addressed whether the county was required to file an affidavit of good faith under Florida Statute § 46.01 as a prerequisite to suing a defendant outside his county of residence.
The affidavit of good faith is a mandatory prerequisite to continuing a suit against a natural person defendant in a county other than his residence, unless waived by the defendant. The trial court erred in denying the motion to dismiss without requiring the affidavit to be filed.
“the affidavit of good faith, unless waived by a defendant who is a natural person, must be filed as a prerequisite to the continuance of a suit against such defendant in a county other than that of his residence”
Statement of the controlling legal principle regarding the mandatory nature of the good faith affidavit requirement under F.S. § 46.01
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Join FLexlaw to unlock all legal intelligenceSanta Rosa County filed a complaint seeking to permanently enjoin defendant Cobb from interfering with a public road in Santa Rosa County. Service was…
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Plaintiff, Santa Rosa County, filed its complaint in Santa Rosa County praying that defendant Cobb be permanently enjoined from doing any act which would interfere with the public use of a certain public road located in Santa Rosa County.
The service was accomplished on defendant Cobb in Escambia County, and subsequently defendant filed his verified motion to dismiss on the grounds of failure of plaintiff to file an affidavit of good faith as required by F.S. § 46.01, F.S.A.,1 setting out in said motion that his residence was in Escambia County, Florida. The trial court denied the motion to dismiss and did not require plaintiff to file an affidavit of good faith. From this order defendant Cobb brought this interlocutory appeal.
The landmark case construing this statute is Bailey v. Crum2 which discusses the statute in full and traces its development. Other decisions bearing upon this subject are found in Sullivan v. Arbuthnot,3 Peterson v. Kirk,4 and Superior Electric Industries, Inc. v. Franklin Acceptance Corporation.5 The net effect of the decisions construing this statute is that the affidavit of good faith, unless waived by a defendant who is a natural person, must be filed as a prerequisite to the continuance of a suit against such defendant in a county other than that of his residence.
Therefore, the order appealed is set aside and the trial court is directed to enter an order requiring the plaintiff to file *601the good faith affidavit within a short day to he fixed by the court, failing which the complaint to stand finally dismissed.
CARROLL, DONALD K., Chief Judge, STURGIS and RAWLS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bailey v. Crum, 120 Fla. 36 (Fla. 1935)
- Peterson v. Kirk, 103 So. 2d 656 (Fla. 2d DCA 1958)
- Sullivan v. Arbuthnot, 146 Fla. 276 (Fla. 1941)
- Superior Elec. Indus., Inc. v. Franklin Acceptance Corp., 130 So. 2d 116 (Fla. 3d DCA 1961)