MAXINE L. KAUTZMANN, APPELLANT,
v.
JOSEPH ALEXANDER AND ELSIE ALEXANDER, HIS WIFE, AND JAMES K. DUNAWAY, D/B/A TROPICAL LANDSCAPE COMPANY, APPELLEES
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.
Appellant Kautzmann challenges a mortgage foreclosure decree obtained against her through service by publication after personal service failed. The court reversed, holding that the affidavit for service by publication failed to allege all statutorily required facts, rendering the service and resulting decree void.
The court reversed the foreclosure decree and all related orders because the affidavit for service by publication contained a total failure to allege essential statutory requirements. The court held that when statutory prerequisites for service by publication are not satisfied, the court acquires no jurisdiction and any decree is void.
“If there is a total want of evidence of any fact, the existence of which is by statute made essential to authorize service of process by publication, there is nothing on which the court is authorized to act and it acquires no jurisdiction to make the order.”
Establishes the core principle that courts lack jurisdiction to order service by publication if statutory prerequisites are not satisfied
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellees Alexander sought to foreclose a mortgage given by Kautzmann on Dade County real property. Personal service on Kautzmann was attempted but re…
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 Void Decree cases and more on FLexlaw
Appellees Alexander instituted and prosecuted to a final decree the foreclosure of a mortgage given by appellant on real property located in Dade County, Florida. Personal service of process upon the appellant was attempted but returned unexe-cuted by the sheriff of Dade County because “after diligent search and inquiry failed to find said defendant in Dade County, Florida.” Sixteen days following the aforesaid return of the sheriff, appellees’ counsel filed in the cause “affidavit for notice by publication” alleging under oath that diligent search and inquiry had been made to determine the residence of appellant and “that such search and inquiry have revealed that the last known residence address of said defendant was 7750 S. W. 114th Street, Kendall, Florida.” The affidavit concluded by alleging that service of summons could not be effected upon the appellant and the belief that she was not in the military service. Upon the basis of this affidavit a notice by publication was directed to the appellant describing her residence as “unknown”.
Following the entry of the final decree of foreclosure, but prior to the sale directed by the court in its decree, the appellant, through her counsel, moved the court to vacate the decree pro confesso entered upon the aforesaid constructive service as well as the final decree and to quash the service by publication. This motion was denied. A subsequent petition for rehearing was granted, the rehearing conducted, but the court adhered to its original decrees. An appeal has been taken from the final decree as well as the order denying motion to vacate.and the order denying petition for rehearing. We reverse.
Section 48.03, Fla.Stat., F.S.A., sets out that a sworn statement is a condition precedent to service by publication, and § 48.04, Fla.Stat., F.S.A., delineates the allegations that must be contained in such sworn statement. Of particular applicability to the case at bar is § 48.04(3) (c) (i) and (ii).
The Supreme Court of this state on numerous occasions has held that every fact should be shown which is necessary under the statute to give the right to an order for service by publication.1 In the case of Gribbel v. Henderson, 151 Fla. 712, 10 So. 2d 734, the same court, in commenting on the essentials necessary to authorize process by publication, said:
“If there is a total want of evidence of any fact, the existence of which is by statute made essential to authorize service of process by publication, there ■ is nothing on which the court is authorized to act and it acquires no jurisdiction to make the order.”
*524Such was the case here. There was a total failure to allege essential requirements of the statute, and consequently, any decree rendered on the basis of such purported service was and is void.
Accordingly, the order denying the motion to vacate and quash service by publication, as well as the final decree and the decree pro confesso, are each separately and severally reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Nannie McDaniel v. McElvy, 108 So. 820 (Fla. 1926)
- Artin Balan v. The Wekiwa Ranch, 97 Fla. 180 (Fla. 1929)
- Wakeman Griffin Gribbel v. Henderson, 151 Fla. 712 (Fla. 1942)