Craven v. J. M. Fields, Inc., 69--2

• Decision Date: 10 September 1969
• Docket Number: No. 69--2,69--2
• Citation: 226 So.2d 407
• Parties: Catherine CRAVEN, Appellant, v. J. M. FIELDS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 407

226 So.2d 407

Catherine CRAVEN, Appellant, v. J. M. FIELDS, INC., Appellee.

No. 69--2.

District Court of Appeal of Florida, Fourth District.

Sept. 10, 1969.

Rehearing Denied Oct. 8, 1969.

Jack Ackerman of Johnson, Brant, Ackerman & Bakst, West Palm Beach, for appellant.

Thomas J. Yeager of Nason, Gildan & Yeager, West Palm Beach, and Aronovitz, Aronovitz & Haverfield, Miami, for appellee.

CROSS, Chief Judge.

This is an interlocutory appeal by the appellant-plaintiff, Catherine Craven, from an order vacating and setting aside a final judgment entered in her favor against the appellee-defendant, J. M. Fields, Inc., in a cause of action in defamation. We reverse.

On April 27, 1967, Catherine Craven filed a lawsuit against J. M. Fields, Inc., in defamation. The Sheriff of Palm Beach County, Florida, executed and filed his return pertaining to the summons as follows:

'Received this writ on the 27th day of April, A.D. 1967, and served same on J. M. Fields, Inc., a corporation, the within named defendant, in Palm Beach County, Florida, at 11:15 A.M. on the 28th day of April A.D. 1967, by delivering a true copy of the writ with the date and hour of service endorsed thereon by me, and a copy of plaintiff's initial pleading as furnished by the plaintiff, to H. R. Pearson as Manager in the absence of the President and all other officers of J. M. Fields, Inc., a corp.'

J. M. Fields, Inc., failed to file any pleadings in the cause or to appear in any manner, and a default judgment was subsequently entered against it. The case was thereafter placed on the trial calendar in the usual manner as provided by the Florida Rules of Civil Procedure, and came on for trial before a jury on September 7, 1967, which resulted in a jury verdict in favor of Catherine Craven. Thereafter, on September 11, 1967, final judgment was entered for the plaintiff.

J. M. Fields, Inc., on October 25, 1968, moved to vacate and set aside the final judgment on the ground the original return, upon which a default and the subsequent final judgment were entered, was defective in that it failed to establish the absence of corporate directors before the summons and complaint were served upon defendant's manager. In an effort to correct the error, an amended return by the sheriff was filed containing the following wording:

'Received this writ on the 27th day of April, A.D. 1967 and served the same on J. M. Fields, Inc., a corporation, the within named Defendant, in Palm Beach County, Florida, at 11:15 A.M. on the 28th day of April, 1967, by delivering a true copy of this writ with the date and hour of service endorsed thereon by me, and a copy of Plaintiff's initial pleading as furnished by the Plaintiff, to H. R. Pearson as Manager of said corporation, residing in this State, in the absence of the President, Vice-president or other head of the corporation, cashier, treasurer, secretary, general manager, all the directors of said corporation, any officer and business agent residing in this State, and by then and there showing to him this original and explaining to him the contents thereof.'

The trial court on November 25, 1968, entered its order vacating and setting aside the final judgment, stating:

'The original return upon which a default and subsequent final judgment were entered was defective in that it failed to establish the absence of the corporate directors before the complaint was served upon defendant's manager. The court is of the view that the defect rendered the service voidable and subject to attack by defendant's motion to vacate the final judgment. The error may not be corrected by the filing of a correct amended return after the entry of the final judgment. Ordered that defendant's motion is granted. The default entered May 22, 1967, by the clerk is vacated and the final judgment of September 11, 1967, is set aside and declared null and void.'

It is from this order vacating and setting aside the final judgment the appeal is taken.

The question for our determination is whether or not an insufficient sheriff's return renders a final judgment void and subject to attack by motion to vacate filed more than one year after entry of the final judgment.

Pursuant to Rule 1.540(b), 31 F.S.A. ¹ relief can be obtained from a final judgment, order or decree.

We glean from the record in the instant case that the final judgment was entered on September 11, 1967. The motion to vacate judgment was served October 25, 1968, more than one year after the entry of the final judgment. Therefore, the judgment in question could not be vacated for the reasons illustrated below in (b)(1), (2) and (3) of Fla.RCP 1.540. The judgment still could be vacated on the basis of (b)(4) or (5). Since the provisions of (b)(5) are not applicable in the instant case, we are left with the sole determination of (b)(4); i.e., whether the judgment herein is void and thus amenable to a motion to vacate made more than one year after the judgment was entered. If the judgment is void, the defendant was not...