George A. Hormel & Co. v. Ackman

• Decision Date: 17 September 1934
• Citation: 117 Fla. 419,158 So. 171
• Parties: GEORGE A. HORMEL & CO. et al. v. ACKMAN.
• Court: Florida Supreme Court

158 So. 171

117 Fla. 419

GEORGE A. HORMEL & CO. et al. v. ACKMAN.

Florida Supreme Court, Division B.

September 17, 1934

Rehearing Denied Oct. 8, 1934.

Error to Circuit Court, Escambia County; L. L. Fabisinski, Judge.

Action by F. W. Ackman against George A. Hormel & Company. From a judgment for plaintiff on defendant's bond to release a levy of execution, defendant and surety bring error.

Affirmed.

COUNSEL

Watson & Pasco & Brown, of Pensacola, for plaintiffs in error.

John M Coe, of Pensacola, for defendant in error.

OPINION

BROWN Justice.

The controlling question here relates to the legality vel non of the service of summons ad respondendum upon the defendant in the court below, a nonresident corporation, upon which service judgment by default and final judgment were rendered against the defendant, plaintiff in error here, in an action in tort for damages. The sheriff's return showed service upon one James C. Waseman, 'being then and there a business agent of the defendant -----, resident in the State of Florida; and there being then and there no President Vice-President, or other head of such corporation, nor Cashier, nor Treasurer, nor Secretary, nor General Manager nor Director thereof, in the county of Escambia, or in the State of Florida.' This return, on its face, complied with section 4251, Comp. Gen. Laws. The service of summons upon Waseman was not brought to defendant's attention, and it did not appear. After judgment was rendered against it, one of its trucks, being driven in Escambia county, Fla., was levied upon under an execution issued on said judgment. The defendant filed its affidavit of illegality under the statute (sections 4515-4516, Comp. Gen. Laws) and gave bond to release the levy. The plaintiff filed motion to quash the affidavit, and the court, after hearing testimony on the issues raised by the affidavit and motion, sustained the motion to quash the affidavit of illegality, to which ruling the defendant excepted. Judgment under the statute was entered against the defendant and the surety on its bond; whereupon defendant took writ of error, and the evidence advanced on the trial is brought here by bill of exceptions.

The statutory remedy adopted by plaintiff in error was an available one to raise the question here presented, on the facts of this case. McGee v. Ancrum, 33 Fla. 499, 15 So. 231; Houstoun v. Bradford, 35 Fla. 490, 17 So. 664; In re Shapiro Holding Corporation (D. C.) 15 F. (2d) 601. See also Bartlett v. Cohn, 97 Fla. 256, 120 So. 357.

The affidavit of illegality, among other things, alleged that Waseman, the person upon whom the summons was served, was not the business agent of the defendant, resident in the state of Florida, as set forth in the sheriff's return, and that the judgment against it, and the execution issued thereon, were therefore illegal and void, having been obtained without due process. This was put in issue by the motion interposed by defendant in error.

The testimony of the manager of plaintiff in error's plant in Mobile, Ala., was to the effect that said James C. Waseman was 'employed' by plaintiff in error in the state of Florida at the time stated in the sheriff's return. Witness said: 'The character of his employment was selling merchandise to arrive only. I mean by that that the order was conditional on acceptance by the Company. He would transmit orders to the company and the company would fill them if they so elected. These orders went to Mobile Alabama. We had no place of business in Florida.' On cross-examination the witness testified that: 'At the time he was employed he lived in or near Pensacola. He did the collecting over here. Mr. Waseman solicited the trade, took the orders and sent them in, and when they were O.K.'d for credit, they were shipped, and he collected some of the money, but not all. * * * The bulk of the trade we already had credit information on. I dare say during the time he was with us there were no new accounts. It was a part of his duty to solicit new accounts. * * * We still have an agent. We do the delivering over here by refrigerated truck driven from Mobile, Ala., with orders to be filled over here. * * * Territory in Florida goes as far as Bagdad. * * * The Pensacola agent represents us in Milton and Bagdad.' This was practically all the material evidence on the point in question. The conclusion of the lower court that this testimony proved that Waseman was plaintiff in error's 'business agent, resident in the State of Florida,' within the meaning of section 4251, C. G. L., and as...