DOWD SHIPPING, INC., A FOREIGN CORPORATION, APPELLANT,
v.
BUD LEE AND ELIZABETH LEE, HIS WIFE, APPELLEES
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Dowd Shipping sought to serve Bud Lee with process at his residence, but the sheriff was unable to gain entry and instead served his wife Elizabeth by phone and left papers at the gate. The trial court dismissed the case against Bud Lee for insufficient service of process. The appellate court reversed, holding that if the residence was Lee's usual place of abode and his wife was over fifteen, substituted service was valid.
If the residence was the usual place of abode of Bud Lee and Elizabeth Lee was over fifteen years of age, the substituted service on her was valid. The purpose of service of process was accomplished because the deputy informed her of his authority, purpose, and the contents of the papers, even though he improperly described the relief sought.
[1] Substituted service of process on a spouse is valid if the residence is the usual place of abode of the other spouse and the serving spouse is over the age of fifteen.
[2] The purpose of service of process is accomplished when the sheriff advises the recipient of their authority and purpose and the contents of the papers to be delivered.
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Join FLexlaw to unlock all legal intelligence“if this residence in question was the usual place of abode of Mr. Lee and if Mrs. Lee was over the age of fifteen years, the substituted service of process on Mr. Lee was valid”
States the legal test for valid substituted service on a defendant's spouse at the residence
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Join FLexlaw to unlock all legal intelligenceA deputy sheriff attempted to serve Bud and Elizabeth Lee at their residence at 4 El Bravo Way in Palm Beach with a Notice of Removal of Tenant and Su…
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DOWNEY, Judge.
A deputy sheriff went to 4 El Bravo Way in Palm Beach to effect service of original process upon the appellees, Bud Lee and Elizabeth Lee, his wife, in a suit brought by appellant seeking an injunction and the recovery of damages for nonpayment of rent and ad valorem taxes.
The sheriff approached the residence located at the designated address but was unable to gain access to the house because an outer gate was locked. The deputy called on the house telephone and appellee, Elizabeth Lee, answered and identified herself. The deputy identified himself and advised Mrs. Lee he had copies of a Notice of Removal of Tenant and Summons for her and her husband. Mrs. Lee responded that her husband was out of town and refused to accept service. The deputy then advised Mrs. Lee that he considered her served and would leave all copies of the papers attached to the gate.
Appellees moved to dismiss the complaint for insufficiency of service of process and the trial court dismissed the cause as to the appellee, Bud Lee. However, in its order the trial court specifically stated that it did not determine whether the residence in question was the “place of abode of both defendants”.
It is our opinion that if this residence in question was the usual place of abode of Mr. Lee and if Mrs. Lee was over the age of fifteen years, the substituted service of process on Mr. Lee was valid. Although the sheriff improperly described the relief sought in the complaint he advised Mrs. Lee of his authority and purpose and told her the contents of the papers he wished to deliver, i. e., the summons and complaint. Had Mrs. Lee come to the door and accepted the papers surely she could not have attacked the service. Nor could Mr. Lee have attacked the substituted service on him if this was his usual place of abode and his wife was over fifteen years old. The purpose of service of process was accomplished here. Haney v. Olin Corporation, 245 So. 2d 671 (Fla. 4th DCA 1971).1 The defect noted in the substituted service in the “Haney wife case,” 2 as the trial judge here aptly described it, is not present in this case. Nor do we think Liberman v. Commercial National Bank of Broward County, 256 So. 2d 63 (Fla. 4th DCA 1971) controls this case because here the deputy complied with the statutory requirements for service.
In view of the foregoing the order appealed from is reversed and the cause is remanded to the trial court to make a determination whether the residence in question was the usual place of abode of appel-lee, Bud Lee, and whether Mrs. Lee was over fifteen years of age. If the answer to both questions is affirmative then the trial court is directed to uphold the service of process on appellee, Bud Lee. If the answer to either question is negative then the trial court should enter a new order granting the motion to dismiss as to appellee, Bud Lee.
REVERSED AND REMANDED WITH DIRECTIONS.
CROSS and DAUKSCH, JJ., concur. . This case involved Mr. Haney.
. Olin Corporation v. Haney, 245 So. 2d 669 (Fla. 4th DCA 1971) involved Mrs. Haney.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Schupak v. Sutton Hill Assocs. & Jesson, Inc., 710 So. 2d 707 (Fla. 4th DCA 1998)…DCA [*709] 1992). A fortiori, leaving process with an apartment doorman in the apartment lobby is insufficient service. See also Cullimore v. Barnett Bank of Jacksonville, 386 So. 2d 894 (Fla. 1st DCA 1980). Sutton cites Dowd Shipping, Inc. v. Lee, 354 So. 2d 1252 (Fla. 4th DCA 1978); Liberman v. Commercial Nat’l Bank of Broward County, 256 So. 2d 63 (Fla. 4th DCA 1971); and Olin Corp. v. Haney, 245 So. 2d 669 (Fla. 4th DCA 1971), as authority for the proposition that there are recognized exceptions to the st…
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Cullimore v. Barnett Bank OF Jacksonville, 386 So. 2d 894 (Fla. 1st DCA 1980)…deputy did testify that she heard noises inside the house, but there is no evidence that she knew those noises were made by a person, let alone that they were made by a person 15 years of age or older. [*896] The facts in Dowd Shipping, Inc. v. Lee, 354 So. 2d 1252 (Fla. 4th DCA 1978), are similar to those here, but distinguishable. There, after the sheriff could not get a response at the designated house, he personally telephoned and established that the defendant was present in that house before returning to…
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Sunshine Sec. & Detective Agency v. Wells Fargo Armored Servs. Corp., 496 So. 2d 246 (Fla. 3d DCA 1986)…nt Sunshine for setting aside the default judgment below have no merit and are specifically rejected. See Westerman v. Shell’s City, Inc., 265 So. 2d 43 (Fla.1972); Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983); Dowd Shipping, Inc. v. Lee, 354 So. 2d 1252 (Fla. 4th DCA 1978); Haney v. Olin Corp., 245 So. 2d 671 (Fla. 4th DCA 1971); see also Fawcett Publications, Inc. v. Rand, 144 So. 2d 512, 514 (Fla. 3d DCA 1962), cert. denied, 155 So. 2d 618 (Fla.1963) (disputes over validity of process resolved on…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haney v. Olin Corp., 245 So. 2d 671 (Fla. 4th DCA 1971)
- Olin Corp. v. Haney, 245 So. 2d 669 (Fla. 4th DCA 1971)
- Haskell M. Liberman and Leatrice Liberman v. Commercial Nat'l Bank OF Broward Cnty., 256 So. 2d 63 (Fla. 4th DCA 1971)