Milton Land & Inv. Co. v. Our Home Life Ins. Co.
| Decision Date | 24 February 1921 |
| Citation | 81 Fla. 227,87 So. 636 |
| Parties | MILTON LAND & INVESTMENT CO. v. OUR HOME LIFE INC. CO. |
| Court | Florida Supreme Court |
Rehearing Denied March 23, 1921.
Error to Circuit Court, Jackson County; C. L. Wilson, Judge.
Assumpsit by the Milton Land & Investment Company against the Our Home Life Insurance Company. Judgment against defendant on default was vacated on motion, and plaintiff brings error.
Affirmed.
Syllabus by the Court
Return of service on mere agent of corporation without showing absence of officers ineffectual. Under the statute regulating the service of summons on private corporations, where the return shows service upon a mere agent of the defendant company, without showing the absence of all the officers of the company of the superior classes designated by the statute as those upon whom service shall be made, before resort is had to service upon one of an inferior class, the service is unauthorized and ineffectual to give the court jurisdiction of the defendant company in the cause.
Judgment void for want of jurisdiction of defendant may be vacated error lies to order vacating judgment for want of jurisdiction. Where a judgment is void because the court had not acquired jurisdiction of the defendant in the cause, such judgment may be vacated by the court, and a writ of error lies to the order of vacation.
Wm. B. Farley, of Marianna, for plaintiff in error.
Chas S. Adams, and George C. Bedell, both of Jacksonville, for defendant in error.
In an action of assumpsit brought by the land company, a corporation, against the life insurance company, a corporation, the return of service made on the summons September 25, 1919, is as follows:
A default for failure to appear was entered by the clerk against the defendant corporation. Subsequently in term time a verdict and judgment were rendered against the defendant. After the adjournment of the court for the term the defendant, specially appearing, moved the court to vacate the judgment and to stay execution and 'all proceedings for the enforcement of the supposed judgment' on grounds going to the validity of the service of summons and the judgment rendered thereon; the defendant not appearing in the cause prior to the making of the motion to vacate the asserted void judgment. The court ordered that the 'motion be, and the same is hereby, granted, and the judgment entered in this cause be, and the same is hereby, vacated, and execution and all proceedings for the enforcement of said judgment stayed.'
A writ of error was taken by the plaintiff below to the order above quoted vacating the judgment on grounds that it is void.
In Stuart v. Butts, 78 Fla. 657, 83 So. 606, it was held that----
'An order of a circuit judge vacating and setting aside a default and final judgment and allowing the defendant further time in which to plead simply opens up the case for further proceedings and is not a final judgment from which writ of error may be taken.'
The order in that case set aside a default and final judgment, upon motion duly made within the time allowed by section 1424, General Statutes 1906, for the purpose of allowing further time for the defendant to plead. That was not a final judgment to support of writ of error under the statute. Section 1691, Gen. Stats. 1906, Compiled Laws 1914.
In this case, as in Einstein v. Davidson, 35 Fla. 342, 17 So. 563, the order vacated a final judgment upon a motion alleging the judgment to be void, which motion was made after the time allowed by the statute for making applications to set aside default and final judgments for the purpose of allowing the defendant further time in which to plead. The order in this case is a final adjudication of an application to vacate an alleged void judgment and to stay the execution of such judgment. It is not an order made pursuant to the statute setting aside a default and final judgment to allow further time for the defendant to plead. See 3 C.J. 467; 2 Ency. Pl. & Pr. 109.
Where a defendant does not appear in a cause, it is incumbent upon the plaintiff to see that proper service of legal process was duly made upon the defendant to give the court jurisdiction of the defendant in the cause. If legal service is not made, and the defendant does not appear in the cause, the judgment may be void. If void, the judgment may be vacated on due application.
Section 1406, General Statutes 1906, chapter 7752, Acts of 1918, provides:
'Sec. 1406. Upon a Private Corporation.--Process against any corporation, domestic or foreign, may be served:
'1. Upon the president or vice president or other head of the corporation. In the absence of such head:
'2. Upon the cashier, or...
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...v. Davidson, 80 Or. 502, 157 P. 788; Frostproof State Bank v. Mallett, 100 Fla. 1464, 131 So. 322; Milton Land and Investment Co. v. Our Home Life Insurance Co., 81 Fla. 227, 89 So. 636; Gasser v. Spalding, 164 Minn. 443, 205 N.W. 374; Kelly v. Anderson, 156 Minn. 71, 194 N.W. 102; Milton H......
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