Marine Transport Lines, Inc. v. Green, B-35

• Decision Date: 06 October 1959
• Docket Number: No. B-35,B-35
• Citation: 114 So.2d 710
• Court: Florida District Court of Appeals
• Parties: MARINE TRANSPORT LINES, INC., a corporation, Appellant, v. Perry L. GREEN, Appellee.

Page 710

114 So.2d 710

MARINE TRANSPORT LINES, INC., a corporation, Appellant, v. Perry L. GREEN, Appellee.

No. B-35.

District Court of Appeal of Florida, First District.

Oct. 6, 1959.

Ragland, Kurz & Toole, Jacksonville, for appellant.

Evans & Stewart, Jacksonville, for appellee.

CARROLL, DONALD, Judge.

The appellee, plaintiff below, in June 18, 1957, filed an action in the Circuit Court for Duval County against the appellant, Marine Transport Lines, Inc., a Delaware corporation, under the 'Jones Act' (46 U.S.C.A. § 688) for injuries sustained by him on September 8, 1954. A summons at law, addressed to appellant, was issued on the day the complaint was filed, but was not attempted to be served until September 2, 1958, when the summons was served on D. F. Pierce, master of the vessel S. S. Marine Courier, then in the harbor of Jacksonville, Duval County. Appellant then filed a motion to dismiss the complaint on the grounds of lack of jurisdiction over the person and subject matter and insufficiency of service of process and other grounds mentioned in Rule 1.11(b) of the Florida Rules of Civil Procedure, 30 F.S.A. together with affidavits of an officer of appellant and the said Pierce, the substance of which affidavits was that Pierce and the vessel had no connection with appellant. After notice and hearing the court granted the motion because of the lack of service of process upon appellant, and granted leave to appellee to have alias summons issued for proper service upon appellant. In accordance therewith, alias summons was issued and served on Captain R. H. Pierce, master of the S. S. Marine Pioneer on August 28, 1958, a vessel then in Duval County. Again, appellant filed a motion to dismiss the complaint on the same grounds as in the earlier motion, together with affidavits of one of its officers and Captain R. H. Pierce, which were in substance similar to the earlier affidavits, to the effect that this master and his vessel were not connected with appellant. Again, the court granted the motion for lack of service of process on appellant and gave leave to appellee to have another alias summons issued. From this order appellant has taken this interlocutory appeal.

Appellant's points on appeal are that the Circuit Court erred in the last-named order in failing to grant appellant's motion to dismiss for lack of jurisdiction over appellant and in giving appellee leave to have alias summons issued.

To understand the tactical positions of the parties, it may be pointed out that at the time this appeal was filed, the statute of limitations had run against appellee's claim, so that he would be foreclosed from filing any new action upon the claim.

The order appealed from comes to us with the presumption of validity, and the principal question before us is whether the circuit judge adused his discretion in granting leave to appellee to have a second alias summons issued, after two previous attempts at serving process upon appellant had been unsuccessful. We are not prepared to say that he abused his discretion in this regard.

Every court has the prerogative and duty to see that its processes are not abused. If a suit is filed obviously and solely for the purpose of avoiding the bar of a statute of limitations, in a jurisdiction distant from the place of residence and operations of the defendant, and repeated efforts at service of process have failed, with no hope or likelihood of ever effecting service in the jurisdiction, a situation might develop in which the court could, in the exercise of a sound discretion, dismiss the suit and decline to order the issuance of additional alias summonses. In this case there was no evidence in affidavit form or otherwise before the court showing that there was no or little likelihood that appellant could be served with process either in the near or distant future. For aught that the affidavits show, numerous officers and agents of appellant could daily be in the State of Florida and many of its vessels could regularly be in the ports of the state.

Upon whom should the burden rest to submit proof on the question of the likelihood of successful service of process in a case of this kind? To us it seems more reasonable to impose this burden upon the defendant, which normally would be in an infinitely better position than a plaintiff to have knowledge as to the likelihood of successful service of process upon the defendant, because of the latter's usually exclusive knowledge of its present and future operations.

Judges WIGGINTON and CARROLL, constituting the majority of this Court, hold that this Court has jurisdiction of this appeal, and Judge STURGIS is of the contrary opinion. In the light of the majority holding on that proposition, Judge STURGIS concurs with Judge CARROLL in holding that the circuit court has not abused its discretion in entering the order appealed from, and it is

Affirmed.

STURGIS, J., concurring specially.

WIGGINTON, Chief Judge, dissents.

STURGIS, Judge (concurring specially).

I am persuaded that this court is without jurisdiction to entertain this appeal. The majority having held to the contrary, and thus established the law of the case on that proposition, in that light I am in accord with the other views expressed in the opinion written by Judge CARROLL.

In addition to the general proposition that the trial court did not abuse its discretion in entering the order appealed, I am of the opinion that on the motion made and under the rules of procedure the trial court would have adused its discretion had it entered a contrary order.

The order in qrestion had the effect of rejecting jurisdiction over the person of the defendant and of retaining jurisdiction over the subject matter of the cause. The so-called motion to dismiss the complaint assigned the following specific grounds: '(1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a cause of action,' but all except ground numbered five (5) were abandoned. By reference to Rule 1.11(b), F.R.C.P., as amended, it will be seen that these grounds of the motion to dismiss the complaint are in the exact language of the 'defenses' which, at the option of the pleader, may be made by 'motion'.

The affidavits supporting ground numbered five (5) of the motion were to no purpose or effect other than that the defendant is a foreign corporation and that service of process was undertaken on a person not qualified to bind the defendant The 'defense' thus presented is a prototype of what was formerly known as a motion to quash the sheriff's return to the summons ad respondendum. Being dilatory in nature, it is not of the type favored in the law.

The fact, standing alone, that service of process is made upon one not qualified to bind the party upon whom it was intended to be served should not operate to destroy the following provision of Rule 1.3(d), 1954 Florida Rules of Civil Procedure:

'When any summons shall be returned not executed or teturned improperly executed as to any defendant, the plaintiff shall be entitled to such additional summons against such defendant or defendants, as may be required to effect service.'

Turning to the question of our jurisdiction to review the order appealed, it is axiomatic that where jurisdiction to review is in doubt and the parties to the appeal have not raised the question, the appellate court should do so of its own motion. While dismissal of this appeal for lack of jurisdiction has the same practical effect on the parties as results from our affirmance of the order in question, I think the former procedure should have been followed and that the contrary disposition vitally affects Florida procedure and practice.

In keeping with Section 4 of the Declaration of Rights, F.S.A., Constitution of Florida, the trial courts, and inferentially the appellate courts, are enjoined to construe the rules of procedure in such manner as to 'secure the just, speedy and inexpensive determination of every action.' Rule A, 1954 Florida Rules of Civil Procedure. Appeal to this court from interlocutory decrees and orders depends entirely on Florida Appellate Rule 4.2(a), 31 F.S.A., promulgated pursuant to Article V. Section 5, paragraph 3, Constitution of Florida, F.S.A., which vests in the Supreme Court exclusive authority to provide for or deny such review. F.A.R. 4.2(a) limits appeals from interlocutory orders in actions at law to those 'relating to venue or jurisdiction over the person.' The limitation was obviously designed to avoid the expense, inconvenience and futility of a full-dress trial in those instances where the court lacks jurisdiction over the person or action. Venue is not in question on this appeal. Hence our power to review the subject order depends on whether it relates to jurisdiction over defendant's person. It is here that we come to the critical fact that the order accords with defendant's insistence that its person has not been subjected to the jurisdiction of the trial court. It is unlikely that the framers of Rule 4.2(a) intended to provide for review in this type of action of orders favorable to a defendant's challenge to jurisdiction over his person. Such would operate to provide and evasive defendant with a more effective dilatory maneuver than any he now enjoys--that by which the defendant-appellant has thus far shown nothing more definite than that the process server hasn't 'tagged' it up to now. This strategy, however legitimate, has nothing to do with the merits of the action.

Comparison of the grounds for dismissal of the complaint, supra, with the enumerated defenses set out in amended Rule 1.11(b), 1954 F.R.C.P., ¹ indicates that in seeking to dismiss the complaint defendant was relying on the original draft of the rule, wherein the words 'the complaint' followed the clause enabling the...