McIntosh v. Wibbeler
| Citation | 106 So.2d 195 |
| Decision Date | 09 July 1958 |
| Docket Number | No. 29301,29301 |
| Parties | Isabel Strong McINTOSH, Appellant, v. John Ross WIBBELER, Appellee. |
| Court | United States State Supreme Court of Florida |
J. B. Patterson, Fort Lauderdale, for appellant.
Aldo Garcia, North Miami, for appellee.
Upon motion to vacate the default judgment entered against appellant and her co-defendants in this cause, the court below was called upon to determine the truth and validity of the sheriff's return showing personal service upon all defendants. There is some confusion in the evidence as to the parties' actual knowledge or notice of portions of the proceedings, and the default judgment apparently came about through an error in referring the matter to insurance carriers.
On the primary issue, however, the evidence is brief. The deputy making service testified 'I don't remember making service on anybody,' and at another point 'I know I made service at Idlewild (home of appellant's son and co-defendant),' but he had no such recollection as to appellant's residence. Defendants denied unequivocally any personal receipt of the original complaint and attached summons, and the court ultimately found for appellant's son and co-defendant and vacated the default judgment entered against him 'because * * * he was not in nor was his father Gregory Strong McIntosh within the County of Broward, State of Florida at said time.'
The latter finding necessarily impeached the validity of the return as to these parties and determined its falsity. The return certifying service upon appellant appeared upon the reverse side of the same summons as the patently false return as to her son, and indicated that service was made upon her at the same time on the same date as service upon the son, at residences considerably removed from each other.
The deputy, in his testimony above quoted, was clearly unable to support the returns, or either of them, by any personal recollection of service, although less than six months' time elapsed before the hearing on the issue. The view of the court below in respect to this factor was 'I don't think any of us remember very much about things that we don't attach significance to, and I think that would explain Mr. Rogers' testimony, not that he so much attached any particular importance to any service, but the repetition of things dulls one's recollection of each step unless there is something unusual about it.' The court thus excused the inherent weakness and discrediting effect of the officer's testimony because of the human tendency to forget matters one regards as insignificant or repetitious, and simultaneously disregarded appellant's explicit denial of personal service because 'her testimony convinces me that she didn't think it was important' and although 'I have no reason to think that anybody here has told anything falsely intentionally or unintentionally * * * the very confusion over what papers mean and their significance * * * carries with it the necessary implication that accurate recollection about precisely what happened may be just as faulty as one's present or past ability to distinguish between one kind of paper and another.' This reasoning, however, attaches undue importance to a deponent's ability to comprehend the refinements of legal processes, when the real issue was as to the fact of personal service or delivery, which the most untutored mind should be capable of understanding and expected to recollect as any ordinary act or fact.
Conceding that the burden in this proceeding is upon appellant to substantiate her claim that the return was false, and upon the trial court to weigh and resolve any conflicts in evidence, we are nevertheless of the opinion that the return should not be sustained. Barnes v. Willis, 65 Fla. 363, 61 So. 828; Golden Gate Development Co. v. Ritchie, 140 Fla. 103, 191 So. 202. In the particular factual situation, i. e. appellant residing alone with a servant and without any member of her family in the household, service in this case could have been effected only by delivery to her in person, and the return in fact so certified. F.S. § 47.13, F.S.A. If we accept the court's conclusion that the evidence established the falsity of the officer's certificate in one instance, then it logically follows that in the absence of distinguishing...
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...see Largay Enterprises, Inc. v. Berman, supra; or there may be invalid service and a return showing valid service, see McIntosh v. Wibbeler, Fla.1958, 106 So.2d 195. In either case it is the fact of valid service--or the fact of invalid service--as shown by the evidence, that is controlling......
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