Cherry v. Heffernan

• Decision Date: 09 April 1938
• Citation: 182 So. 427,132 Fla. 386
• Court: Florida Supreme Court
• Parties: CHERRY et ux. v. HEFFERNAN et al.

182 So. 427

132 Fla. 386

CHERRY et ux. v. HEFFERNAN et al.

Florida Supreme Court, Division A.

April 9, 1938

Rehearing Denied July 14, 1938.

Original proceeding for writ of prohibition by E. M. Cherry and wife against D. J. Heffernan and another, as Judges of the Civil Court of Record in and for Dade County, Florida, and others to restrain defendants from entering, or causing to be entered, any orders of any nature whatsoever in a cause pending therein against plaintiffs.A rule nisi was granted and defendants moved to vacate it.

Rule nisi ordered quashed.

COUNSEL

Casey, Walton & Spain, DuBose & Rhudy, and Thos. V McCaul, Jr., all of Miami, for plaintiffs.

Blackwell & Walker, of Miami, for defendants.

OPINION

TERRELL Justice.

The plaintiffs, E. M. Cherry and Lena Robertson Cherry, are residents of Scotland Neck, N. C.The defendantsCoy McMahon and Ives Dairy Company, a Florida corporation, are residents of Florida.In August, 1937, while the Cherrys were temporarily in Florida operating their automobile along the federal highway in Dade county, they collided with a milk truck of Ives Dairy Company driven by Coy McMahon.The Cherrys were injured and their automobile was damaged.The milk truck was also damaged and Coy McMahon was injured.The Cherrys soon after returned to their home in North Carolina.

In October, 1937, the Cherrys filed a common-law action in the circuit court of Dade county against Ives Dairy Company, which was in November, 1937, dismissed and a new action was brought by the same plaintiffs against the same defendant in the United States District Court for the Southern District of Florida laying damages in the sum of $50,000.

Ives Dairy Company then brought a common-law action against the Cherrys for the benefit of itself, Coy McMahon, and its workmen's compensation insurance carrier, AEtna Casualty & Surety Company.The Cherrys being nonresidents, service was made on them as provided by chapter 17254, Acts 1935, that is to say, by serving the summons ad respondendum on the Secretary of State, who was paid the statutory fee of $2, and the plaintiff, through its counsel, forwarding from Miami, Fla., on December 11, 1937, in registered air mail, a letter addressed to E. M. Cherry and Lena Robertson Cherry at their residence in Scotland Neck, N. C., with return receipt requested, said letter containing a copy of the summons ad respondendum, a copy of the certificate of Hon. R. A. Gray, Secretary of State, to the effect that he had received the statutory fee, had been duly served with notice of the institution of the action and the service of the summons ad respondendum on him, which registered letter the Cherrys, as defendants, refused to accept, and having been so refused, it was returned to counsel for Ives Dairy Company endorsed by the Post Office Department'refused,' and it was thereupon filed with the case papers in the office of the clerk of the civil court of record of Dade county.

The said registered letter having been 'refused,' the judge of the civil court of record of Dade county entered an order December 24, 1937, requiring the Cherrys to enter their appearance on the rule day in January, 1938, and upon their failure or refusal to do so, a default would be entered against them.The Cherrys forthwith applied to this court for writ of prohibition to restrain the plaintiffs, the judges of the civil court of record for Dade county and its clerk, from entering or causing to be entered, any orders of any nature whatsoever in the cause pending therein.A rule nisi was granted, a motion to vacate which we now are confronted with.

The motion to vacate the rule nisi is grounded on the charge that the state is a necessary party to prohibition, that a certified transcript of the record of the cause in the civil court of record was not attached to the suggestion for prohibition, and that it affirmatively appears that the provisions of chapter 17254, Acts 1935, were not substantially complied with by Ives Dairy Company in their attempt to serve process upon the Cherrys and consequently the order entered by the civil court of record requiring the Cherrys to file their appearance under penalty of default was not within its jurisdiction to enter.

The state is not a necessary party to a proceeding in prohibition.Section 5450, Compiled General Laws of 1927;Frederick, County Solicitor, v. Rowe, Judge,105 Fla. 193, 140 So. 915.It affirmatively appears that a certified transcript of the proceedings in the civil court of record of Dade county is attached to the suggestion for writ of prohibition.

As to the service, chapter 17254, Acts 1935, provides for constructive or substituted service on non resident owners, drivers, operators, agents of them, or those permitting or having motor vehicles driven for or by them in the state of Florida.When such persons accept the privilege of the public highways of the state, said acceptance shall be equivalent to the appointment by him or them of the Secretary of State as their agent upon whom may be served all process in any action or proceeding against them growing out of any accident or collision in which they may be involved while operating their automobile on the public roads of this state.

Service of such process shall be made by leaving a copy including a fee of...