RICHARD EUGENE TAYLOR, APPELLANT,
v.
ROSA P. LOPEZ, ETC., ET AL., APPELLEES
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The Third District Court of Appeal reversed a default judgment entered against defendant Taylor, holding that the trial court lacked jurisdiction because the plaintiff failed to comply with strict statutory requirements for service by publication. The court emphasized that constructive service is permissible only when personal service cannot be obtained, and the affidavit supporting publication service must satisfy all statutory prerequisites.
The court held that constructive service by publication is invalid and the default judgment must be set aside because: (1) no effort was made to obtain personal service on the amended complaint despite having an identified address; (2) the affidavit supporting publication failed to satisfy statutory requirements by not stating the defendant's age, residency status, or other required elements; and (3) resort to constructive service is predicated on 'necessity' and cannot be used when personal service is possible.
[1] Service of process by publication is permissible only when personal service cannot be effected.
[2] Resort to constructive service by publication is predicated on necessity.
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Join FLexlaw to unlock all legal intelligence“It seems elemental that service of process by publication may be had only if personal service of process cannot be had. Resort to constructive service by publication is predicated on "necessity"”
Establishes the foundational principle that constructive service is only permissible when personal service is impossible.
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed a subrogation complaint for auto negligence against defendant Taylor. An initial summons was returned as 'no service.' Rather than at…
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CRAWFORD, GRADY L. (Ret.), Associate Judge.
The appellees herein, plaintiffs below, filed a subrogation complaint for auto negligence against the appellant, defendant below. Summons was issued but returned by the Sheriff as “no service”. Thereafter, an amended complaint was filed but no effort was made to obtain personal service. Ap-pellees proceeded rather to effect constructive service by filing “Notice of Action” and affidavit by counsel in support of publication. A final Default Judgment was entered against appellant on September 2, 1976. On April 27, 1977, appellant filed a motion to set aside default judgment on the ground that the trial court lacked jurisdiction to enter said judgment since no legal service of process had been effected upon the appellant that would give the court proper jurisdiction over him. This motion was denied on April 28, 1977, and this appeal followed.
It seems elemental that service of process by publication may be had only if personal service of process cannot be had. Resort to constructive service by publication is predicated on “necessity”, (25 Fla. Jur. Process, Sec. 31, page 409).
In the instant case, no summons was requested or issued against appellant seeking personal service of the amended complaint.
In attempting to obtain constructive service under F.S. 49.041, the affidavit filed as the basis for such service falls far short of the statutory requirements; e. g., it avers that “the present resident and mailing address of said appellant is as follows: 2741 N.W. 175 Street, # IB, Miami, Florida”, and publication was made addressed to Robert Eugene Taylor at that Miami address. If that was, in truth, the residence address of the appellant, he could have been personally served there.
The affidavit did not state the age of appellant, or aver that it was unknown. It was not stated whether he was a resident or nonresident, absent from the State, concealing himself, or any other statutory requirement to form the basis for good constructive service. In the 4th Dist.Ct. of appeal of Florida, case of Elmex Corp. v. Atlantic Federal Saving and Loan Association, Fla. App., 325 So. 2d 58, the court stated at page 61, as follows:
“The courts have consistently observed that statutes relating to substituted service of process (in lieu of personal service of process) must be strictly construed; and the burden of proof to sustain the validity of substituted service of process rests upon the person seeking to invoke the provisions of such statutes.”
Appellees have not and did not satisfy the strict requirements of F.S. 49.041, and, therefore, their constructive service upon the appellant is insufficient and legally void. It follows that there was no jurisdiction over said appellant, and the trial court lacked legal authority to enter its default judgment, and such judgment must be, and is hereby set aside.
Reversed and remanded.
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Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225 (Fla. 1986)…effective notice to a defendant than personal service; thus, service by publication should only be used when necessary. See Burton v. Burton, 448 So. 2d 1229 (Fla. 2d DCA 1984); Shefer v. Shefer, 440 So. 2d 1319 (Fla. 3d DCA 1983); Taylor v. Lopez, 358 So. 2d 69 (Fla. 3d DCA 1978). If constructive service must be used, then it confers only in rem or quasi in rem jurisdiction upon the court. A personal judgment against a defendant based upon constructive service of process would deprive a defendant of his p…
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Gans v. Heathgate-Sunflower Homeowners Ass'n, Inc., 593 So. 2d 549 (Fla. 4th DCA 1992)…corporate, known or unknown, including: (1) Any known or unknown natural person.... (emphasis added). This section only authorizes service of process by publication when the plaintiff cannot effect personal service on a defendant. Taylor v. Lopez, 358 So. 2d 69, 70 (Fla. 3d DCA 1978). The determining factor is whether personal service “cannot be had.” The Association discovered Mrs. Gans’s Miami address and could have effected service on her at that address. Furthermore, when a plaintiff seeks service of…
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Dian Lewis v. Fifth Third Mortg. Co., 38 So. 3d 157 (Fla. 3d DCA 2010)…. (2007), a mortgage [*164] holder may only resort to service of process by publication “[w]here personal service of process or ... service of process under s. 48.194 cannot be had.” § 49.021, Fla. Stat. (2007) (emphasis added); see Taylor v. Lopez, 358 So. 2d 69, 70 (Fla. 3d DCA 1978) (holding that section 49.021 only authorizes service by publication when the plaintiff cannot effect personal service on a defendant). Additionally, although a mortgage holder submits an affidavit of diligent search, this doe…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Elmex Corp. v. Atl. Fed. Sav. & Loan Ass'n OF Fort Lauderdale, 325 So. 2d 58 (Fla. 4th DCA 1976)