State Ex Rel. Merritt v. Heffernan

• Decision Date: 26 March 1940
• Parties: STATE ex rel. MERRITT v. HEFFERNAN et al.
• Court: Florida Supreme Court

195 So. 145

142 Fla. 496

STATE ex rel. MERRITT v. HEFFERNAN et al.

Florida Supreme Court, Division A.

March 26, 1940

Error to Circuit Court, Dade County; Arthur Gomez, Judge.

Prohibition proceeding by the State of Florida, on the relation of King Merritt, against the Honorable David J. Heffernan and another, as Judges of the Civil Court of Record in and for Dade County, Fla., and another. The circuit judge ordered a rule nisi theretofore issued quashed, and entered judgment for the defendants, and relator brings error.

Affirmed.

COUNSEL

Shutts, Bowen, Simmons, Prevatt & Julian, H. N Boureau, and Grady L. Crawford, all of Miami, for plaintiff in error.

Paul C Taylor, Edwin L. Hubbard, and Batchelor & Dyer, all of Miami for defendants in error.

OPINION

THOMAS Justice.

The procedure followed in litigating the issues in this case, culminating in a writ of error to this court, was quite intricate.

Ruth Ewing, plaintiff, brought suit in the Civil Court of Record of Dade County against King Merritt, defendant, and thereupon summons ad respondendum issued to be later served by the sheriff (according to his return): '* * * by leaving a true copy of this Summons at his (Merritt's) usual place of abode with a member of his family then and there residing above the age of 15 years, to-wit: Mrs. King Merritt, his wife, and by then and there showing to her this original and explaining to her the contents thereof:'.

The defendant appeared specially and moved to quash the return charging that that part of it referring to 'usual place of abode' was untrue and in support of his motion filed affidavits about defendant's residence in another state, Minnesota, where he had an office, voted and paid taxes. On his own behalf he deposed that his family occupied an apartment at Miami Beach, where he joined them twice during the season, the last visit ending the very day service was made. Immediately before the deputy sheriff called at the apartment occupied by his family he had entrained for the distant state.

A judge of the Civil Court of Record denied the motion to quash.

Merritt then became a relator in the Circuit Court where there was filed in his behalf a suggestion for writ of prohibition against the judges of the Civil Court of Record to prevent them from exercising further jurisdiction and against Ruth Ewing to preclude prosecution of the original action. A rule nisi issued and demurrer to it was overruled. The judges filed formal answers and the litigant Ewing presented the issue of the truthfulness of the statement in the return with reference to leaving the summons at the 'usual place of abode'. A jury was sworn to try this issue before Honorable Arthur Gomez and motion was then made to quash the rule nisi because the summons was regular 'on its face' and matters dehors the record could not be presented by special appearance and motion to quash. The motion was denied and the jury found in favor of the respondents, the judges of the Civil Court of Record and Ruth Ewing, consequently the circuit judge ordered the rule nisi in prohibition quashed. Writ of error issued and here the State of Florida ex rel. King Merritt is plaintiff in error and the judges and Ruth Ewing are defendants in error.

Much was said in the briefs about the correctness of presenting matters dehors the record by motion to quash, as was done in this case, but we shall not discuss it further than to observe that both parties submitted the question to the court in this manner and it was not until the jury was sworn in the prohibition proceedings long afterward that the plaintiff, co-respondent there, questioned this method of procedure. Having submitted the issue to the judge of the Civil Court of Record by motion and affidavits, it was too late after he had ruled thereon and the Circuit Court had entertained jurisdiction in prohibition, to assign the objection about the procedure.

Inasmuch as no party as relator or respondent in the Circuit Court objected to the determination of the issue of fact there by a jury, we will not comment on the practice but will deal with the merits of the case regardless of the steps followed resulting in the judgment of the Circuit Court quashing the writ of prohibition and thereby holding that the service on the relator, King Merritt, was sufficient.

At the outset we have the conviction that the real purpose of the service of summons ad respondendum is to give proper notice to the defendant in the case that he is answerable to the claim of plaintiff and, therefore, to vest jurisdiction in the court entertaining the controversy, for, as was said by Mr. Justice Clifford, in Earle v. McVeigh, 1 Otto 503, 504, 91 U.S. 503, 24 L.Ed. 398, 401.

'No man shall be condemned in his person or property without notice, and an opportunity to be heard in his defense. * * *'

The substance of that decision was that the usual place of abode of the defendant was 'his then present residence * * *'.

We quote further from the case of Eckman v. Grear, 187 A. 556, 558, 14 N.J.Misc. 807:

'Going one step further, 'usual place of

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