Space Coast Credit Union v. The First, F.A.

• Decision Date: 28 March 1985
• Docket Number: No. 84-1484,84-1484
• Citation: 467 So.2d 737,10 Fla. L. Weekly 823
• Parties: 10 Fla. L. Weekly 823 SPACE COAST CREDIT UNION, etc., Appellant, v. THE FIRST, F.A., etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 737

467 So.2d 737

10 Fla. L. Weekly 823

SPACE COAST CREDIT UNION, etc., Appellant, v. THE FIRST, F.A., etc., et al., Appellees.

No. 84-1484.

District Court of Appeal of Florida Fifth District.

March 28, 1985.

Rehearing Denied April 26, 1985.

Bruce A. Nants, Orlando, for appellant.

Terry C. Young and James J. Loveless, Jr., of Giles, Hedrick & Robinson, P.A., Orlando, for appellee, The First, F.A.

COWART, Judge.

This appeal involves the question of whether a writ of garnishment defectively served by a non-authorized process server upon an employee of the garnishee can perfect a court's subject matter jurisdiction.

Space Coast Credit Union, as judgment creditor, sought to garnish the judgment debtor's interest in a checking account at the appellee bank (the garnishee). The judgment creditor filed a motion for writ of garnishment, and the writ of garnishment was issued by the clerk of the court. The writ was not served by the sheriff or by a special process server appointed by the sheriff or by the court. Also, the writ was delivered to a lower echelon employee of the garnishee bank who was not authorized to accept service of process and on the day service of process was attempted there were officers of the garnishee bank on the premises as well as business agents and directors. The garnishee failed to file an answer to the writ and a default judgment was entered against the garnishee.

Eighteen months after the final default judgment, the garnishee moved for relief from judgment, apparently under Florida Rule of Civil Procedure 1.540(b). The garnishee alleged the default judgment was void because the service of process was defective. The trial court found that the service of process was defective and the judgment creditor had made no attempt to collect the judgment until after one year from entry of the final default judgment. The trial court found that enforcement of the judgment against the garnishee would constitute an inequitable result and vacated the final default judgment. The judgment creditor appeals.

Florida Rule of Civil Procedure 1.540 states that all motions for relief from judgment must be filed within a reasonable time and in some situations not more than one year after the judgment was entered. However, if a judgment or decree is void or it is no longer equitable that the judgment or decree should have prospective application, the one year limitation does not apply. This court and other Florida courts, both before and after the adoption of Florida Rule of Civil Procedure 1.540(b), have stated that a void judgment may be attacked "at any time" because a void judgment creates no binding obligation upon the parties, is legally ineffective, and is a nullity. See Watkins v. Johnson, 139 Fla. 712, 191 So. 2 (1939); Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926); Whigham v. Whigham, 464 So.2d 674 (Fla. 5th DCA 1985); Florida Power & Light Co. v. Canal Authority, 423 So.2d 421 (Fla. 5th DCA 1982); Tucker v. Dianne Elect., Inc., 389 So.2d 683 (Fla. 5th DCA 1980); T.J.K. v. N.B., 237 So.2d 592 (Fla. 4th DCA 1970). See also DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984) (where judgment is void, there is no time limitation under Rule 1.540(b) ).

Although a garnishment proceeding is ancillary or collateral to the main action establishing the debt, a garnishment proceeding, like an attachment proceeding, is separate and distinct from the main action. See Caldwell v. People's Bank of Sanford, 73 Fla. 1165, 75 So. 848 (1917). The writ of garnishment is the process a copy of which must be delivered to the person to be served. H. Trawick, Florida Practice and Procedure § 33-3 (1984 Ed.). The writ must be delivered to the sheriff and is served on the garnishee in the same manner as other process is served. Id.

A court's subject matter jurisdiction must be properly invoked and perfected. Jurisdiction is perfected by a proper service of sufficient process on all indispensable parties, and this service of process gives the court jurisdiction of the parties. See Florida Power and Light Co. v. Canal Authority, supra, at 424. In a garnishment proceeding, jurisdiction over the defendant garnishee is obtained by service on him, actual or constructive, or by his appearance. If the court fails to acquire jurisdiction over the defendant in the proper manner, its judgment is void. See Johnson v. Clark, 145 Fla. 258, 198 So. 842 (1940); McGehee v. Wilkins, 31 Fla. 83, 12 So. 228 (1893).

In this case, the judgment creditor attempted actual service of process on the garnishee. Section 48.021, Florida Statutes (1983), states that all process shall be served by the sheriff of the county where the person to be served is found or by a special process server appointed by the sheriff, except for witness...