Hayes v. Greenwald, 62-582
| Decision Date | 12 February 1963 |
| Docket Number | No. 62-582,62-582 |
| Citation | 149 So.2d 586 |
| Parties | William L. HAYES and Pauline A. Hayes, Appellants, v. Allen R. GREENWALD, Appellee. |
| Court | Florida District Court of Appeals |
Donald F. Frost, Miami, for appellants.
Greenwald & Sponder, North Miami Beach, for appellee.
Before CARROLL, HORTON and HENDRY, JJ.
Appellee filed an action against appellants in the civil court of record in Dade County seeking recovery of a real estate brokerage commission. His complaint alleged he was employed to find a purchaser for certain premises; that plaintiff showed the premises to the purchaser, who then bought the property direct from the defendants. The listing and sale were alleged to have been in May of 1961. Suit was filed in August, when the defendants no longer lived in Florida. Substituted service was made on the Secretary of State. Section 47.16, Fla.Stat., F.S.A., entitled 'Service of process upon nonresidents engaging in business in state,' provides for such service on nonresidents who 'operate, conduct, engage in, or carry on a business or business venture in the state.' For such service to be valid it must appear that the matter sued on 'arising out of any transaction or operation connected with or incidental to such business or business venture.'
Plaintiff obtained a default. On December 8, 1961, final judgment was entered by default against the defendants William L. Hayes and Pauline A. Hayes, his wife, for $825 plus interest and costs. In April of 1962 defendants moved the court to set aside the judgment as void for want of personal service. Through the motion and affidavits attached thereto the defendants disclaimed the doing of business and showed that the commission was claimed with reference to sale by them of their homestead on moving from Florida to Georgia. The motion was denied and defendants appealed. 1
We regard the use of substituted service in this case as unauthorized. The isolated action of selling a home, by one who moves to another state, does not amount to a business venture within the meaning and intent of § 47.16(1) Fla.Stat., F.S.A. The cases of State ex rel. Weber v. Register, Fla.1953, 67 So.2d 619, and Wm. E. Strasser Contruction Corporation v. Linn, Fla.1957, 97 So.2d 458, are distinguishable; the former because it involved the purchase and resale of business property and the latter because it concerned purchase of property for use in a planned business operation and was regarded as an initial step in such business. Compare Toffel v. Baugher, Fla.App.1960, 125 So.2d 321, cert. discharged Fla.1961, 133 So.2d 420, and Berkman v. Ann Lewis Shops, 2 Cir., 1957, 246 F.2d 44, 49.
Substituted service not being authorized, appellants were never subjected...
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Rollins Nursing Home, Inc. v. M & LC/Stillwell Mortg. Co.
...to sell stock in a foreign corporation does not indicate a general course of business activity in this State. See, Hayes v. Greenwald, 149 So.2d 586 (Fla. 3d DCA 1963). The record does not reflect any acts taken by the plaintiff in this State on behalf of the defendants. * * * (Emphasis The......
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A. B. L. Realty Corp. v. Cohl
...the State of Florida to bring this case under Section 47.16, Florida Statutes, F.S.A. 125 So.2d at 325. Similarly, Hayes v. Greenwald, 149 So.2d 586 (Fla. 3d DCA 1963) disallowed the use of the long-arm statute to obtain personal jurisdiction over a couple who had sold their Florida homeste......
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Gluszek v. Richardson, Civ. A. No. 71-2034.
...when jurisdiction is absent, a judgment is not voidable, but void. A void judgment may be stricken at any time. Hayes v. Greenwald, 149 So.2d 586 (Fla.Dist.Ct.App.1963). Hence, if the service of process on Mrs. Gluszek was invalid, there was no jurisdiction for the divorce decree. Keeping i......
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Richard Sewell & Wes Real Estate, Inc. v. Patrick Colee & Diane Colee, Husband & Wife, & Nobel House Little Palm Island, Ltd., 3D13–425.
...lacks legal force or effect and may be vacated at any time. Zitani v. Reed, 992 So.2d 403, 409 (Fla. 2d DCA 2008); Hayes v. Greenwald, 149 So.2d 586, 587 (Fla. 3d DCA 1963). By contrast, a voidable judgment must be attacked under Florida Rule of Civil Procedure 1.540(b) within one year and ......