Hawkins v. Bay County Publishers, Inc., D-430
| Decision Date | 17 January 1963 |
| Docket Number | No. D-430,D-430 |
| Parties | Wallace H. HAWKINS, Appellant, v. BAY COUNTY PUBLISHERS, INC., Appellee. |
| Court | Florida District Court of Appeals |
William E. Harris, of Davenport, Johnston, Harris & Urquhart, Panama City, for appellant.
Charles S. Isler, Jr., of Isler, Welch & Jones, Panama City, for appellee.
Plaintiff has appealed from a final judgment entered upon an order granting defendant's motion to dismiss the complaint. The propriety of the order forms the principal point on appeal.
Plaintiff filed his complaint on August 30, 1961, seeking damages suffered as a result of an alleged libelous article published by defendant on August 31, 1959, in its newspaper of general circulation in Bay County.
To the complaint defendant filed a motion to dismiss on the following grounds: (1) insufficiency of process; (2) insufficiency of service of process; (3) it affirmatively appears that the cause of action sought to be described in the complaint sounds in libel and occurred more than two years prior to submitting process for service; (4) the complaint served upon this defendant has no attached Exhibit A or other exhibit and which said Exhibit A is referred to in the copy of the complaint; (5) the complaint does not aver the falsity of the material alleged to have been published by this defendant.
Upon the hearing held on defendant's motion the trial court entered an order and final judgment which forms the subject of this appeal. The order recites that the complaint sounds in libel and was filed on August 30, 1961, complaining of an article allegedly published on August 31, 1959; that the Clerk of this Court caused summons at law to be duly and regularly issued on August 30, 1961, but that such process was not delivered to the sheriff for service until April 18, 1962, and was served upon defendant on said latter date. Based upon these findings the court ordered that defendant's motion to dismiss be granted and adjudged that the complaint is not susceptible of amendment for the reason that more than two years have transpired since the commission of the alleged act complained of and that plaintiff's cause of action, if any, is barred by the statute of limitations.
It is plaintiff's position that the trial court erred in granting defendant's motion to dismiss on the grounds stated in the order and judgment appealed. With this contention we are compelled to agree.
Rule 1.11(b), 30 F.S.A., sets forth the only defenses to a claim for relief which may be presented by motion. Only the first two grounds of defendant's motion are recognized as valid defenses to a claim for relief, to-wit: insufficiency of process and insufficiency of service of process. Neither of these grounds forms the basis of the order upon which the judgment of dismissal is predicated. The remaining three grounds upon which defendant relied are not recognized under our rules as valid grounds for such a motion. They constitute grounds for which relief may be granted by the court, but not pursuant to a motion to dismiss the complaint.
The court's order granting the motion to dismiss is predicated upon a finding that process in the cause was not delivered to the sheriff for service on defendant until a date beyond the tow-year period of limitations within which an action at law for libel must be instituted. 1 Our rules of procedure provide that every suit of a civil nature shall be deemed as commenced when the complaint is filed. 2 The rule further provides that upon the commencement of the action summons shall be forthwith issued by the clerk or judge of the court and delivered for service without praecipe. 3 There is no evidence in the record, nor was any finding made by the trial judge, as to who withheld the summons, or why it was withheld from service for the period of time indicated.
By its brief appellee supports the correctness of the order dismissing the complaint by a citation of authorities which appear to hold that even though an action is filed within the period required by the statute of limitations, the action will nevertheless be barred if plaintiff, without cause, withholds the summons so that process cannot be served on the defendants to the action until after the period of limitations has expired. It is not necessary that we now pass upon the correctness of this principle of law. It cannot be questioned that the complaint in this cause was filed within the two-year period of limitations required by the above cited statute in effect in this...
To continue reading
Request your trial
-
Pride v. Peterson, 53628
...to prove his affirmative defenses, which cannot be done in proceedings on a motion to dismiss.' In 1963 Hawkins v. Bay County Publishers, Inc., Fla.App., 148 So.2d 561, 564, after citing Hough with approval, added '* * * it is specifically provided that the statute of limitations, when reli......
-
Fletcher v. Williams
...of the specificity of the rule, I am fully in accord with that conclusion. The decision of this court in Hawkins v. Bay County Publishers, Inc., 148 So.2d 561 (Fla.App.1963), simply followed the rule in the Proctor and Tuggle cases, supra, holding that the defense of the statute of limitati......
-
Stern v. First Nat. Bank of South Miami
...be raised by a R.C.P. 1.140(b), 30 F.S.A., motion to dismiss. See: B.B.S. v. R.C.B., Fla.App.1971, 252 So.2d 837; Hawkins v. Bay County Publishers, Fla.App.1963, 148 So.2d 561; Banzhaf v. Parrish, Fla.App.1959, 109 So.2d 892; Cook v. Central & Southern Florida Flood Control District, Fla.Ap......
-
Williams v. Covell, M--443
...appellee or respondent contends that the Friday case is not applicable but this case should be governed by Hawkins v. Bay County Publishers, Inc., 148 So.2d 561 (Fla.App.1st, 1963) in which this court held that the defense of the statute of limitations should be by Answer only, and not prop......