Parish Mortg. Corp. v. Davis
| Decision Date | 22 June 1971 |
| Docket Number | No. 70--1282,70--1282 |
| Citation | 251 So.2d 342 |
| Parties | PARISH MORTGAGE CORPORATION, a Louisiana corporation, Appellant, v. Lowry W. DAVIS and Guion T. De Loach, Appellees. |
| Court | Florida District Court of Appeals |
Ehrich & Zuckerman, Miami, for appellant.
Lowry W. Davis and Guion T. De Loach, in pro. per.
Before PEARSON, C.J., and CHARLES CARROLL and SWANN, JJ.
Parish Mortgage Corporation, a Louisiana corporation, one of the defendants below, filed this appeal from an order denying its motion to set aside a judgment entered on default. The action was brought by the appellees, lawyers, to recover from the appellant certain attorney fees. One claim was for a liquidated amount of fees alleged to have been provided for by contract for plaintiffs' services in foreclosing a mortgage on a barge, or, without foreclosure, in obtaining title and transfer of the barge to the mortgagee Parish Mortgage Corporation. It was alleged title to the barge was thus obtained for the corporation from the mortgagor without foreclosure, and that the stipulated fee therefor was $17,067.50. The complaint presented an additional claim for a fee or commission, in an unliquidated amount, for the reasonable value of the services of plaintiffs in finding a purchaser of the barge after its acquisition by the corporation. By an amendment to the complaint it was alleged that the defendant was a non-resident corporation which had not qualified to do business in the State of Florida, but had been and was doing business within this state, and stating that substituted service was to be obtained on the corporation.
The method employed for obtaining service was that provided for by § 48.161 Fla.Stat., F.S.A. Service of a summons was made on the Secretary of State on August 11, 1970. The return day fixed in the summons was twenty days after the date of service thereof, or August 31, 1970. The statute requires that the copy of the process shall be mailed 'forthwith' to the defendant by registered or certified mail by the plaintiff or his attorney, who shall file an affidavit certifying compliance therewith 'on or before the return day of the process or within such time as the court allows.' Those requirements of the statute as to mailing notice to the defendant 'forthwith' and timely filing of the affidavit were not complied with. No notice of the service of the summons on the Secretary of State was mailed to the defendant until September 17, 1970, which was 37 days after the service on the Secretary of State, and 17 days after the return date fixed in the process. On September 18, 1970, one of the plaintiffs filed an affidavit showing the mailing of such notice to the defendant on September 17, 1970.
On September 18, 1970, plaintiffs moved the clerk of the court to enter a default 'for failure (of the defendant) to serve or file answer or other pleading as required by law.' The requested default was not entered by the clerk. Thereafter on September 29, 1970, the plaintiffs moved the court to enter default, and the court entered default against the Louisiana defendant on that date. On October 7, 1970, the plaintiffs filed a motion for final judgment, supported by an affidavit of claim revealing a balance of $11,667.26 due on the fee claimed for regaining title to the barge, and $5,000 due for services on sale of the barge. On said date the court entered final judgment against the defendant Parish Mortgage Corporation, in favor of the plaintiffs, for the...
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Boyles v. Boyles
...set out in Florida's substituted service of process statute, Fla.Stat.Ann. § 48.161 (West 1969 & Supp.1983). Parish Mortgage Corp. v. Davis, 251 So.2d 342 (Fla.Dist.Ct.App.1971). We are aware that in defendant's case, a domestic case seeking enforcement of alimony provisions, plaintiff need......
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Banco De Costa Rica v. Rodriguez
...defendant," Carlini v. State Dept. of Legal Affairs, 521 So.2d 254, 255 (Fla. 4th DCA 1988) (en banc); see also Parish Mortgage Corp. v. Davis, 251 So.2d 342 (Fla. 3d DCA), cert. denied, 254 So.2d 789 (Fla.1971), unless defendant voluntarily submits to the jurisdiction of the court. Public ......
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Pelycado Onroerend Goed B.V. v. Ruthenberg
...the "long arm" statute. Once substitute service is selected, these statutes must be strictly complied with. Parish Mortgage Co. v. Davis, 251 So.2d 342, 343 (Fla. 3rd DCA), cert. denied, 254 So.2d 789 (Fla.1971). In this case, the statutes were not complied To perfect service on a nonreside......
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Gray v. Lukowski
...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.2d 917, 919 In light of the foregoing it necessarily follows trial court did not er......