State Ex Rel. Neel v. Love

• Citation: 148 So. 208,110 Fla. 91
• Parties: STATE ex rel. NEEL et al. v. LOVE et al.
• Decision Date: 05 May 1933
• Court: United States State Supreme Court of Florida

148 So. 208

110 Fla. 91

STATE ex rel. NEEL et al. v. LOVE et al.

Florida Supreme Court

May 5, 1933

Rehearing Denied May 26, 1933.

En Banc.

Original proceedings by the State of Florida, on the relation of Lee Neel and others, copartners doing business under the firm name of Neel Brothers, for a writ of prohibition prayed to be directed to the Honorable E. C. Love, and another, Judges of the Circuit Court of the Second Judicial Circuit, sitting in and for Gadsden County, and another.

Writ of prohibition denied, and proceedings dismissed.

COUNSEL Alexander & Jones, of Thomasville, Ga., E. Paul Gregory, of Quincy, and James Messer, Jr., and W. J. Oven both of Tallahassee, for petitioners.

Blake & Taylor, of Quincy, for respondents.

OPINION

DAVIS Chief Justice.

In this case a rule nisi in prohibition was issued against the judges of the circuit court of Leon county and Margaret Dunkle, the plaintiff in a suit at common law pending therein, upon an allegation that the circuit court was about to proceed to judgment against the relators, Neel Brothers, as defendants in that court, without having obtained jurisdiction over the persons of said defendants. The case is now before us upon an application for a writ of prohibition absolute.

That prohibition is an appropriate remedy to restrain proceedings in a suit at common law wherein the court has never acquired jurisdiction over the parties by service of process, or by voluntary appearance of the defendants, is established in this jurisdiction by the holding of this court in Speight v. Horne, 101 Fla. 101, 133 So. 574; Id., 101 Fla. 108 135 So. 528, so we pass to a consideration of the present proceeding on its merits.

Neel Brothers, as copartners, were sued by Margaret Dunkle as plaintiff in a law action seeking recovery from them of $20,000 damages for alleged personal injuries inflicted on plaintiff by reason of the alleged negligent operation of an automobile truck on the highways of this state. Service of process on Neel Brothers was attempted under chapter 14765 Acts of 1931, Laws of Florida, by delivery of summons to said defendant through the secretary of state as in that act provided.

Defendants appeared specially in the suit and resisted the jurisdiction of the court on the ground that the method of service pursued was unauthorized by the statutes, and on the further ground that the statute itself was unconstitutional. The court held that the question of jurisdiction had not been properly raised and refused to sustain defendants' motion to quash the process.

The return day of the process was given as December 5, 1932, which was the rule day of that month. On the return day defendants filed their special appearance through counsel, stating therein that such special appearance was entered 'for the sole purpose of objecting to the jurisdiction of this Court over the persons of the defendants.' On December 22, 1932, defendants filed with the clerk their motion to quash the service and return of service in the cause. See section 4279, Comp. Gen. Laws (chapter 11971, Acts of 1927).

On January 6, 1933, the circuit court entered its order refusing to quash the service and giving defendants fifteen days from date thereof to plead. On January 18th a petition and bond for removal of the cause from the circuit court to the United States District Court on the ground of diversity of citizenship of the parties was filed. On January 20th the defendants' prayer for an order of removal of the cause to the federal court was denied by the state court on the specific finding and ground stated in the order to the effect that the removal petition had been filed too late to be effective for removal purposes under the laws of the United States which require such removal petitions and bonds to be filed in the state court on or before the time presented by the state law for pleading, answering, or demurring to the declaration in the cause. Sections 28, 29, U.S. Judicial Code, 28 USCA §§ 71, 72.

Section 4282, Comp. Gen. Laws, section 2616, Rev. Gen. St., provides that the defendant in an action at law shall file his plea on the rule day succeeding that upon which the declaration is filed, unless, upon motion, further time be given by the court. The declaration in this case was filed on the December, 1932, rule day, so under ...