Speight v. Horne
| Decision Date | 04 April 1931 |
| Citation | 101 Fla. 101,133 So. 574 |
| Parties | SPEIGHT et al. v. HORNE, Judge, et al. |
| Court | Florida Supreme Court |
Original application by J. P. Speight and others for a writ of prohibition to prohibit Hon. M. F. Horne, Judge of the Third Judicial Circuit, from further proceeding in a commonlaw action filed in the circuit court, wherein A. L. Rowe is plaintiff, and the petitioners are defendants, as partners doing business under the style and firm name of the Madison Tobacco Company.
Relator's demurrer to the return of the circuit judge and the plaintiff to the rule nisi sustained.
Syllabus by the Court.
Under section 4229(2589), Comp. Gen. Laws 1927, a personal suit at law is begun by filing a praecipe or memorandum 'stating the names of the parties, the nature of the action and the amount of the debt or damages for which the plaintiff sues.'
Under section 4248(2601), Comp. Gen. Laws 1927, when an original process 'issued out against' several persons composing a mercantile or other firm, the service of said process on any one member of said firm is as valid as if served upon each individual member thereof, and the plaintiff may, after service upon any one member as aforesaid, proceed to judgment and execution against them all.
Where process in a suit at law is sued out against several persons described as 'A. Livingston, F. L. Cantey, J. P. Speight partners doing business under the style and firm name of Madison Tobacco Company,' the action is against the named defendants as individuals and not as copartners.
Where process in a suit at law is sued out against several persons described as 'A. Livingston, F. L. Cantey, J. P. Speight partners doing business under the style and firm name of Madison Tobacco Company,' and a summons ad respondendum is issued pursuant thereto against such named persons, the process thus issued only applies to the individuals therein named as individuals, althought they are called 'partners' by way of descriptio personae.
While service of process, as provided in section 4248, Comp. Gen Laws 1927, is valid against several persons composing a mercantile or other firm in cases where the service is only made on one member of said firm, it is essential that the process which is served on the single member shall have been 'sued out' against the several persons alleged to compose the firm in their capacity as partners.
Where it appears from the record that process of the character described by section 4248 has neither been 'sued out' nor served under conditions which render that section applicable, those defendants named in the suit who have not been served and who have not voluntarily appeared in the cause have the right to object to further proceedings in the cause which would result in the rendition of a judgment against them as partners in a partnership suit in which they have never been legally served with process and have never appeared.
Primarily an objection to proceedings in a cause which would result in the rendition of a judgment against the defendants as partners in a partnership suit in which the defendants have never been legally served with process and have never appeared must be made to the trial court.
When appropriate objection is made to proceedings in a cause which it is alleged would result in rendition of judgment against the defendants who have never been legally served and who have never appeared, it is the duty of the court to investigate the suggestion of lack of jurisdiction and determine from the record and other facts submitted whether or not the court has ever lawfully obtained jurisdiction over the parties against whom the suit is brought, either by appropriate service of process or by their voluntary appearance.
Prohibition is an appropriate remedy to restrain further proceedings in a case where the court has never acquired jurisdition over the parties, and the remedy by writ of error may not be a plain speedy, and adequate remedy for the petitioners.
Where prohibition has been applied for and a rule nisi issued to restrain further proceedings in a case against defendants over whom the court has never acquired jurisdiction, a showing in the record of the cause that an alias summons in proper form to bind defendants has been sued out, but never served before the rule nisi issued, is insufficient to affect the ruling to be made in the prohibition proceedings on the record as it stood on the date the rule nisi was granted.
Hugh M. Taylor, of Quincy, and R. C. Horne, of Madison, for applicants.
R. H. Rowe, of Madison, for respondents.
In this case J. P. Speight, a resident of the county of Decatur, state of Georgia, and A. Livingston and F. L. Cantey, citizens and residents of the county of Madison and state of Florida, individually and as copartners doing business under the firm name and style of Madison Tobacco Company, seek a writ of prohibition against the Hon. M. F. Horne, judge of the Third judicial circuit of the state of Florida, to prohibit him from further proceeding in a common-law action filed in the circuit court of Madison county wherein A. L. Rowe is plaintiff, and the declaration filed in the cause declares against the defendants who are therein designated as 'A. Livingston, F. L. Cantey and J. P. Speight, as partners doing business under the style and firm name of Madison Tobacco Company.'
The action was begun by the filing of a praecipe for summons in which the defendants were merely named as 'A. Livingston, F. L. Cantey, J. P. Speight, partners doing business under the style and firm name of Madison Tobacco Company.' Pursuant to this praecipe, a summons ad respondendum was issued in the words and figures following, after omitting the formal parts:
The return of the sheriff shows that it was executed by the sheriff 'on June 27, 1930, on Madison Tobacco Company, a co-partnership, and on Speight & Cantey, a co-partnership and on F. L. Cantey, individually, by delivering to him on said date a true copy of this writ for himself and...
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Lucian v. Southern Ohio Sav. Bank & Trust Co.
... ... himself personally to the jurisdiction of the trial court. We ... hold this contention to be erroneous. Speight v ... Horne, 101 Fla. 101, 133 So. 574; State ex rel. Neel ... v. Love, 110 Fla. 91, 148 So. 208; State ex rel. Cox ... v. Adams, 148 Fla ... ...
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Rehrer v. Weeks,, 705
...has never been acquired over the parties through service of process or by voluntary appearence or waiver. See Speight v. Horne, 1931, 101 Fla. 101, 133 So. 574; Speight v. Horne, 1931, 101 Fla. 108, 135 So. 528; State ex rel. Neel v. Love, 1933, 110 Fla. 91, 148 So. 208; and State ex rel. C......
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State v. Barrs
... ... his person through the service of a proper summons [105 Fla ... 29] ad respondendum, or otherwise. Speight v. Horne ... (Fla.) 133 So. 574, 577 ... The ... court granted the rule nisi and the cause is now before the ... court on the demurrer ... ...
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