Paradis v. Cicero, 4845
| Decision Date | 05 August 1964 |
| Docket Number | No. 4845,4845 |
| Citation | 167 So.2d 248 |
| Parties | Roy F. PARADIS and R. V. Hemphill, Appellants, v. Joseph John CICERO and Charles Wesley Mitchell, Appellees. |
| Court | Florida District Court of Appeals |
Ephraim Collins, Miami Beach; Carlton & McCain, Fort Pierce, and Ulrich, Rubin & Berman, Miami Beach, for appellants.
Alan R. Schwartz, of Nichols, Gaither, Beckham, Colson & Spence, Miami, for appellees.
This is one of two cases here on appeal involving substantially the same parties and having common origin in a collision between two motor vehicles in Okeechobee County. In the other case, subsequently instituted in Hillsborough County, we have denied motions to dismiss and quash the appeal. Cicero v. Paradis, Case No. 4921, Fla.App., 167 So.2d 248, per curiam opinion of this date.
The principal adversaries involved in the two cases seek to be original plaintiffs as to their respective claims for damages. Neither side wishes to be defendants forced to counterclaim, and neither side wishes to litigate in the venue selected by the other. The strategies employed to achieve these ends have presented a web of procedural involvement which we shall attempt to unravel.
The collision occurred in May 1963. It appears that defendant Charles W. Mitchell was traveling in a car owned and occupied by co-defendant Joseph John Cicero, a minor, when it collided with the rear of a dump truck driven by plaintiff R. B. Hemphill and owned by co-plaintiff Boy F. Paradis. The parties thereafter betook themselves to separate court houses.
The instant case was instituted in October 1963 by Paradis and Hemphill against Cicero and Mitchell in Okeechobee County, where the collision occurred, and thereafter on 4 December 1963 Cicero, by his father and next friend, sued Paradis and Hemphill in Hillsborough County. Charles W. Mitchell, driver of the Cicero car, is a party only in the action in Okeechobee County. Neither case has gone beyond the pleading state.
On 13 February 1964 the Hillsborough County case, our No. 4921 on appeal, was dismissed by the trial court for want of jurisdiction on the ground that jurisdiction of the Circuit Court for Okeechobee County had already attached by reason of the earlier complaint filed in that court. That order of dismissal in Hillsborough County was appealed by plaintiff Cicero, whereupon defendants Paradis and Hemphill moved to dismiss and to quash the appeal. As previously indicated, these motions to dismiss and quash the appeal in case No. 4921 have been denied by us for reasons set forth in a per curiam opinion of this date.
The preliminary skirmishing reached a climactic point when Paradis and Hemphill, plaintiffs in this first instituted Okeechobee County case, brought the instant interlocutory appeal protesting the trial court's dismissal of the complaint and the cause as to co-defendant Joseph John Cicero. Cicero purportedly was served constructively under Sec. 47.30 Fla.Stat., F.S.A. After service on the Secretary of State the court appointed a guardian ad litem for the minor Cicero who was in the armed forces. Proof of service was not forwarded to Cicero until 34 days after service on the Secretary of State, so the trial court correctly ruled that the necessary documents had not been sent 'forthwith' as required by the statute. Compare Green Manor Construction Co. v. Punta Gorda Ready Mix Concrete Co., Fla.App.1963, 159 So.2d 255, reversed as to another point, Fla.1964, 166 So.2d 889.
The trial court, however, did not merely quash the attempted service upon Cicero with express or implicit leave to make record showing of a new and proper substituted service of process. The court, as previously noted, dismissed the complaint and the action as to Cicero for want of jurisdiction over his person--while the cause remained extant as to the other defendant, Charles Mitchell, upon whom jurisdiction apparently had been...
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Cicero v. Paradis
...was held to be ineffectual by a January 29, 1964, order of the Okeechobee court. The order was affirmed by this court in Paradis v. Cicero, Fla.App.1964, 167 So.2d 248. The same order dropped Hemphill as a plaintiff on the ground that he had been improperly joined as a On December 4, 1963, ......
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Gray v. Lukowski
...barred consideration of the aforesaid belatedly filed instrument. This conclusion finds more than minimal support in Paradis v. Cicero, 167 So.2d 248, 249 (Fla.App.1964), followed in Parish Mortgage Corporation v. Davis, 251 So.2d 342, 343 (Fla.App.1971); Hoyt v. Nick, 113 N.H. 478, 309 A.2......
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Florida Farm Bureau Ins. Co. v. Austin Carpet Service, Inc., KK-352
...suffered by the Martins, the issue was nevertheless final as to Florida Farm Bureau on its claim for subrogation. Cf. Paradis v. Cicero, 167 So.2d 248 (Fla. 2d DCA 1964); Schneider v. Manheimer, 170 So.2d 75 (Fla. 3d DCA 1964); Conboy v. Naples, 226 So.2d 108 (Fla. 2d DCA 1969). True, the o......
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George Fischer, Ltd. v. Plastiline, Inc., 79-403
...service upon the Secretary of State, and this court has held that a delay of only 34 days violated the statute. Paradis v. Cicero, 167 So.2d 248, 249(1) (Fla.2d DCA 1964). Appellant did not urge this last ground in its motion to quash, and appellee objects to the attempt to raise it at this......