Rorick v. Stilwell

• Decision Date: 01 April 1931
• Parties: RORICK et al. v. STILWELL et al.
• Court: Florida Supreme Court

133 So. 609

101 Fla. 4

RORICK et al. v. STILWELL et al.

Florida Supreme Court, Division B.

April 1, 1931

Suit by Thomas N. Stilwell and another, as taxpayers of Broward County, Port District, on behalf of themselves and on behalf of all taxpayers similarly situated, against H. C. Rorick and others, as copartners trading and doing business under the firm name and style of Spitzer Rorick & Co. From the decree rendered, defendants entered a special appeal.

Reversed and cause remanded.

Syllabus by the Court.

SYLLABUS

Conceding the constitutionality arguendo of section 4249, C. G. L section 2602, R. G. S., relating to service of process on agents of nonresident copartnerships, such statute refers to an agent having some general supervision over the general affairs of the copartnership being carried on in the state of Florida, or to some accredited representative of the copartnership in the state of Florida having general authority to act for it.

Where a special appearance is entered for the sole purpose of moving to set aside the service of a summons, it is not a waiver of the defect objected to, nor can the court be justified in treating such special appearance as general without sufficient cause showing either a submission to jurisdiction by participation in the proceeding, or by express waiver of the defect by voluntary appearance.

The doctrine of waiver of defects in process and in service of process is salutary, and the rule ought to be rigidly applied in every case where the acts of the party can be fairly construed into a waiver, but it would be proceeding with too great strictness to apply such doctrine in a case where it appears that the objecting party took every reasonable precaution to guard against the effect of his special appearance operating as a voluntary appearance rendering unnecessary proper service of process.

If however, the defendant does take some step in the proceeding which amounts in law to a submission to the court's jurisdiction, the fact that the defendant insists that he never so intended or that he does not admit the jurisdiction of the court over his person or that he only appears specially and not generally is insufficient to preclude the court from considering and holding that the defendant has entered a general appearance in contemplation of law whatever the defendant may choose to denominate his act.

Where the court holds that a defendant has entered a general appearance in contemplation of law, whatever the defendant may have denominated his act, the court is authorized to hold that the defendant is in court for all purposes.

In equity as well as at law, special appearances have been expressly recognized in Florida, although in law cases the rule appears to have been more strictly applied, which tends to discourage as dilatory the filing of such appearances.

A motion in a cause may or may not operate as an appearance dependent on the relief sought by the motion and whether or not it is specially based upon the sole ground of want of jurisdiction.

A motion in a cause based wholly on alleged want of jurisdiction is not an appearance generally nor a waiver of any irregularity in the proceedings by which a party is attempted to be brought into court, but a motion grounded wholly or in part upon error in the judgment or upon irregularities aside from the question of jurisdiction, is such a waiver as constitutes an appearance.

A general appearance is entered in a cause by the making of any motion which involves the merits.

An appearance cannot be controlled by the designation given it by the appearing party and that, if an appearance is for the sole purpose of vacating an order or judgment for lack of jurisdiction because of no service of process, the appearance is special, whether so designated or not. On the other hand if a party makes a motion asking for relief that can be granted only by a court having jurisdiction, his appearance is general, though designated special.

Persons who are named as defendants in a suit in equity where process has been issued and returned as served upon them, when in truth and in fact no such service has in legal effect been made, although shown by the return, have the right to call such lack of jurisdiction to the attention of the court by specially appearing in the cause and moving to set aside or vacate the service of process, when it appears of record in the cause as a virtual basis for the court to assume that it has lawfully obtained jurisdiction over the person of the defendants.

So long as a special appearance entered, and a motion filed pursuant thereto whether filed personally or through counsel in that behalf, is confined solely to jurisdictional matters and asks nothing of the court except that the court determine for itself its own want of jurisdiction under the law, the special appearance entered and motion so filed must be regarded as limited in character and as per se conferring no jurisdiction on the court to proceed to trial on the merits.

In every case where it is claimed that service of process has been waived, that fact ought to be clearly established and shown on the record.

If no legal service has in fact been had, and a special appearance designed to raise that objection, and limited to such objection alone, is filed, it cannot be considered a general appearance, nor does it in and of itself confer any jurisdiction over the person of the defendant interposing it.

The rules of practice in the courts of equity of the United States, as prescribed by the Supreme Court thereof, are under the statutes of Florida the rules of practice of the courts of the state when exercising equity jurisdiction, and, when the rules of practice so directed by the Supreme Court do not apply, the 'practice' of the courts in equity cases is regulated by the practice of the high Court of Chancery of England.

In Florida there is no special statute or rule of court prescribing any particular method for testing the sufficiency of the service of a summons in chancery, so the federal practice is permissible under our statute, section 4919, C. G. L., section 3132, R. G. S.

A motion to set aside the service, or a motion to quash the return, accompanied by a special appearance for that purpose, is the proper method of testing the sufficiency of such service in a chancery cause, unless the defendant prefers to disregard it and subsequently to raise the objection upon an appeal from the decree or to resist the execution of the decree as void.

A sheriff's return showing service of process in a chancery case may be contradicted. To do so by motion with adequate notice to the opposite party results in a practice which is simple, speedy, and effective, and well calculated to promote the interests of justice with the least costs and trouble to suitors.

The Method of service process provided for by section 4249, C. G. L., section 2602, R. G. S., is in the nature of substituted service and to be strictly construed.

Complainants relying upon service of process under section 4249, C. G. L., section 2602, R. G. S., are required to bring themselves clearly within the provisions of the statute in order to render service of process under the statute effective against their defendants.

Where service of process has been resorted to under section 4249, C. G. L., section 2602, R. G. S., it is appropriate for the defendants who are named as copartners to incorporate in their special appearance and motion to quash the service a special allegation that the alleged partnership sued was composed of a greater number of parties than are named in the process, and such allegation is not to be taken as a plea of nonjoinder, but as a showing that the jurisdictional conditions necessary to invoke the operation of the statute have not been observed.

A service of process under section 4249, C. G. L., section 2602, R. G. S., is ineffective when made on the agent of a partnership of which a single member is not a nonresident of the state, although all the others are nonresidents.

It is necessary that, when service of process is attempted under section 4249, C. G. L., section 2602, R. G. S., the names of all the partners who are defendants shall be shown, so that the court can determine whether such partnership is composed wholly of persons not resident in this state as contemplated by the statute.

If jurisdiction has not been obtained by proper service of process or otherwise, it is proper to move, as an incident to a motion to quash the void service and return, to set aside a void decree pro confesso which has been entered on an illegal return of service, and merely filing such a motion seeking that object is not equivalent to the entry of a general appearance, though no grounds for the motion be stated, where the limited purpose of such motion otherwise appears.

Where defendants in an equity suit file a special appearance and motion to quash the return of service which is alleged to be void, and such motion is denied, from which denial a special appeal is duly taken, and defendants procure a supersedeas in the cause incident to such special appeal, but do no more in obtaining such supersedeas than is necessary to give effect to their special appeal which is already entered, merely procuring such supersedeas does not constitute a general appearance in the main suit in the lower court.

While the general rule is that a plea to the jurisdiction based on special matters of fact dehors the record, where the truth of the return of process is admitted, must be interposed in person and not by attorney, this rule has no application to those special matters which are grounded on an alleged complete failure to make an effectual service of process which matters...