Shannon v. Great Southern Equipment Co., 75-101
| Decision Date | 16 January 1976 |
| Docket Number | No. 75-101,75-101 |
| Citation | 326 So.2d 19 |
| Parties | John SHANNON, Appellant, v. GREAT SOUTHERN EQUIPMENT COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Roger D. Haagenson and Alvin Capp, Fort Lauderdale, for appellant.
Robert L. King, Tampa, for appellee.
Appellant John Shannon, as garnishee, brings this interlocutory appeal from a denial of his motion to set aside a judgment in garnishment. We find merit to his contention and reverse.
Appellee Great Southern Equipment Company filed an original complaint against one Shelfer, allegedly a creditor of appellant Shannon. Great Southern's claim against Shelfer was an In personam claim based on an equipment purchase contract and on a certain account for work and labor performed. At the same time Great Southern moved for pre-judgment garnishment against Shannon, pursuant to § 77.031 et seq., F.S.1973, seeking to attach Shannon's aforementioned debt to Shelfer. Personal service against Shelfer was unsuccessful so Great Southern perfected Constructive process against him pursuant to § 49.011, F.S.1973. Personal service of the writ of garnishment, however, was perfected as against Shannon. Neither Shelfer nor Shannon responded, as a consequence of which defaults were entered against each of them. A final judgment subsequently issued 'against the property of the defendant, MILTON B. SHELFER, in the hands of the garnishee, JOHN SHANNON, to the extent of (the amount of the claim), together with costs . . ., for which let execution issue.' The final judgment then expressly provided that Great Southern also have and recover a judgment personally against Shannon in the aforementioned amounts. Shannon contends this judgment is void and we agree.
At the outset, Shannon contends that the Florida pre-judgment garnishment statute is unconstitutional. 1 We need not now answer this question, however, because even assuming its validity the judgment against Shannon is void.
First of all, § 77.081, F.S.1973, provides that:
'No final judgment against (the) garnishee shall be entered before the entry of, or in excess of, the final judgment against the original defendant with interest and costs.'
This necessarily implies, of course, that the judgment against the original defendant be a valid one. Here it was not for the reasons following.
As noted, the original action against Shelfer sounded In personam. If such an action is to be prosecuted against one on whom personal service cannot be effected it must...
To continue reading
Request your trial
-
Bedford Computer Corp. v. Graphic Press, Inc.
...of contract disputes such as the one here. Gaskill v. May Brothers, Inc., 372 So.2d 98 (Fla. 2d DCA 1979); Shannon v. Great Southern Equipment Co., 326 So.2d 19 (Fla. 2d DCA 1976); Ressler v. Sena, 307 So.2d 457 (Fla. 4th DCA 1975); Clark v. Realty Investment Center, Inc., 252 So.2d 589 (Fl......
-
Lahr v. Lahr
...against the property itself and include a specific description of that property. Griffin, supra. See also Shannon v. Great Southern Equipment Co., Fla.App.2d 1976, 326 So.2d 19. In the case before us the petition simply alleged that '(t)he parties own real and personal property to be distri......
-
Milanick v. State
...long-arm statute, but in personam jurisdiction cannot be obtained over her by service by publication."); Shannon v. Great S. Equip. Co., 326 So. 2d 19, 20 (Fla. 2d DCA 1976) ("As noted, the original action against Shelfer sounded In personam. If such an action is to be prosecuted against on......
-
Milanick v. State, 5D13–4493.
...long-arm statute, but in personam jurisdiction cannot be obtained over her by service by publication.”); Shannon v. Great S. Equip. Co., 326 So.2d 19, 20 (Fla. 2d DCA 1976) (“As noted, the original action against Shelfer sounded In personam. If such an action is to be prosecuted against one......