Green Manor Const. Co. v. Punta Gorda Ready Mixed Concrete, Inc.

• Decision Date: 20 December 1963
• Docket Number: No. 3866,3866
• Citation: 159 So.2d 255
• Court: Florida District Court of Appeals
• Parties: GREEN MANOR CONSTRUCTION CO., Inc., a Connecticut corporation qualified to transact business in Florida, Appellant, v. PUNTA GORDA READY MIXED CONCRETE, INC., a Florida corporation, Appellee.

Page 255

159 So.2d 255

GREEN MANOR CONSTRUCTION CO., Inc., a Connecticut corporation qualified to transact business in Florida, Appellant, v. PUNTA GORDA READY MIXED CONCRETE, INC., a Florida corporation, Appellee.

No. 3866.

District Court of Appeal of Florida, Second District.

Dec. 20, 1963.

Rehearing Denied Jan. 17, 1964.

Julius I. Friedman, Miami, for appellant.

Leo Wotitzky, of Wotitzky, Wotitzky & Conrad, Punta Gorda, for appellee.

WHITE, Judge.

The defendant below, a Connecticut corporation, appeals a final default judgment against it in favor of the plaintiff-appellee. The first question to be determined is whether or not jurisdiction over the defendant was obtained by substituted service of process on the Secretary of State under Fla.Stat. §§ 47.16 and 47.30, F.S.A., the requirements of which sections must be substantially followed. See e. g. Conway v. Spence, Fla.App.1960, 119 So.2d 426; Jenkins v. Fawcett Publications, Inc., 1962, D.C., 204 F.Supp. 361; cf. Lendsay v. Cotton, Fla.App.1960, 123 So.2d 745, 746.

The protested judgment was entered December 13, 1962 and contains the following:

'The Court finds that service was secured on this defendant on November 7, 1962, that the defendant has not answered or otherwise pleaded within the time provided by law and by the rules governing this Court; that the plaintiff has filed herein a sworn statement of account and has shown the Court that there are no credits of offsets against same.'

The plaintiff's motion for default and final judgment was presented to the trial court and granted on December 12, 1962, but the papers were not formally recorded in the clerk's office until the next day, December 13, 1962. The motion recited that: (1) The plaintiff on October 10, 1962 secured service on one Herbert Greer as agent of defendant, and on October 26, 1962 defendant appeared specially by motion to dismiss asserting that Greer was not its agent; (2) Plaintiff then secured service by alias summons through the office of the Secretary of State pursuant to Fla.Stat. §§ 47.16 and 47.30, F.S.A.; (3) Defendant has not answered or otherwise pleaded and the issue raised by the motion to dismiss filed October 26, 1962 is now moot because valid service was subsequently had on the Secretary of State; (4) Plaintiff filed its affidavit under oath showing that defendant is indebted to plaintiff in the sum of $7,623.30 and that no part of said sum has been paid and there are no offsets or credits; and (5) Plaintiff is entitled to default and final judgment against said defendant.

Following entry of judgment on the foregoing motion the defendant changed counsel. On January 16, 1963 the defendant moved to vacate the judgment and tendered an answer, but the defendant filed notice of appeal on February 11, 1963 with no action having been taken on its motion to vacate. In these circumstances the trial court properly held itself without jurisdiction to rule on the motion.

On appeal the defendant urges for the first time that the service of process on the Secretary of State was faulty. It is first asserted that a requirement of controlling Fla.Stat. § 47.30, F.S.A ¹ was not met in that the affidavit of compliance was not filed prior to the return date of the process. The affidavit was, however, filed 'within such further time as the court may allow' and before defauly was entered. The trial court acknowledged that the affidavit of compliance was subscribed and sworn to before him on December 12, 1962. There was substantial compliance on this aspect of the service.

It is further urged that the statute was not followed in that the notice of service and copy of process were not mailed to the defendant until five days after service on the Secretary of State. This contention also is without merit. We can not agree that the word 'forthwith' as used in this statute means 'at the same time' or 'within twenty-four hours after service of process on the Secretary of State' as argued by the defendant. In Conway v. Spence, Fla.App.1960, 119 So.2d 426, 427, the court said:

'* * * The notice which the statute requires, is one which will impart to the non-resident defendant the information that service of such process has been made on the Florida Secretary of State. * * * Therefore, we must uphold appellants' contention that the forwarding to them, as non-residents, of copies of the summons before it was served on the Secretary of State, with no notice as to the fact of service, was not a substantial compliance with the statutory requirement for 'notice of such service' of process on the Secretary of State.' (Emphasis supplied.)

In the case just quoted plaintiff mailed the summons to the Secretary of State and mailed copies to the defendant two days later, but the Secretary of State did not accept service until the following day or three days after mailing by the plaintiff to the defendant. As observed in Florida Civil Practice Before Trial published by the Florida Bar Committee On Continuing Legal Education, 1963, § 14.7, at page 394, '[p]roof of the service of...