State v. Gray

• Decision Date: 05 January 1927
• Citation: 111 So. 242,92 Fla. 1123
• Parties: STATE ex rel. PALMER v. GRAY, Circuit Judge.
• Court: Florida Supreme Court

111 So. 242

92 Fla. 1123

STATE ex rel. PALMER v. GRAY, Circuit Judge.

Florida Supreme Court

January 5, 1927

En Banc.

Original proceeding by the State, on the relation of Ruby H. Palmer for mandamus to be directed to De Witt T. Gray, Circuit Judge for the Fourth Judicial Circuit of Florida, in and for Duval County.

Alternative writ denied.

Syllabus by the Court

SYLLABUS

Statutes authorizing substituted service of process are strictly construed; to render substituted service of process effective, plaintiff must bring himself clearly within statutes authorizing it (Rev. Gen. St. 1920, § 2602). The method of serving process authorized by Rev. Gen. St. 1920, § 2602, is in the nature of substituted service. Statutes authorizing service of that character are strictly construed. In order to render such service of process effective, the plaintiff must bring himself clearly within the provisions of the statute authorizing it.

Statute for substituted service held not available where nonresident members of partnership are sued solely as individuals (Rev Gen. St. 1920, § 2602). The provisions of section 2602, Rev Gen. St. 1920, are not available, where nonresident members of a copartnership are sued solely as individuals, as, for example, for a joint tort, or for a joint contract obligation unconnected with the partnership business.

Omission of 'as' in designating defendants, nonresidents before 'copartners trading and doing business,' under certain firm name, held to prevent substituted service on copartnership (Rev. Gen. St. 1920, § 2602). In a common-law action, the defendants were styled in the summons: 'John H. Swisher and Carl S. Swisher, nonresidents of the state of Florida, and copartners trading and doing business in the state of Florida, under the firm name of John H. Swisher & Son.' Held, that the omission of the word 'as,' following the names of the defendants, and preceding the phrase, 'copartners trading and doing business,' etc., renders the latter phrase merely descriptio personae, and the action one against the named persons as joint defendant, but not necessarily as copartners, so that the cause is not within the purview of section 2602, Rev. Gen. Stat. 1920, which relates exclusively to the service of process upon the members of a limited and designated class of copartnerships.

COUNSEL

George C. Bedell, of Jacksonville, for relator.

OPINION

STRUM J.

This is a case of original jurisdiction. The cause comes before us upon a petition for writ of mandamus disclosing the following circumstances:

The relator, Ruby H. Palmer, as plaintiff, instituted an action at law in the circuit court of Duval county against 'John H. Swisher and Carl S. Swisher, nonresidents of the state of Florida, and copartners trading and doing business in the state of Florida under the firm name of John H. Swisher & Son'; the object of the action being to recover damages because of the killing of G. B. Palmer, plaintiff's husband, through the carelessness and negligence of 'the said defendants.' The petition further alleges that summons issued out of said circuit court in said action, directed to 'all and singular the sheriffs of the state of Florida, commanding them to summon the said John H. Swisher and Carl S. Swisher, nonresidents of the state of Florida, and copartners trading and doing business in the State of Florida under the firm name of John H. Swisher & Son.' The return upon said summons discloses that it was executed in Duval county, Fla., 'by delivering a true copy thereof to V. E. Smallwood, a business agent and accredited representative of the within named defendant copartnership John H. Swisher and Carl S. Swisher, nonresidents of the state of Florida, and copartners trading and doing business in the state of Florida, under the firm name of John H. Swisher & Son, and at the same time showing this original, and explaining the contents thereof, it appearing that personal service cannot be made upon either of the above-named individual copartners in accordance with statutes now 'of' force in the state of Florida.'

The defendants appeared specially, and moved to quash the return, upon the grounds, amongst others, that 'the said V. E. Smallwood, as described in said return, was not a person upon whom the service of process could bind these defendants'; and that section 2602, Rev. Gen. Stat. 1920, 'under which the said pretended service was sought to be made,' is violative of designated sections of the Federal Constitution. The motion to quash was granted. Thereupon the plaintiff in that action, as relator, applied here for a writ of mandamus to require Hon. De Witt T. Gray, as circuit judge of the Fourth Judicial Circuit of Florida in and for Duval county, and who made the order quashing the return aforesaid, to hear and determine the action so brought by relator, as plaintiff, in said circuit court; to strike from the record the order of said judge whereby the service of said writ of summons was quashed; and thereupon to make such disposition of the action as ought to have been made had the said order not been entered. See Crump v. Branning, 74 Fla. 522, 77 So. 228; State ex rel. Hopps v. Horne, 75 Fla. 149, 77 So. 672; State ex rel. Claar v. Branning, 85 Fla. 61, 95 So. 237.

The relator contends that the return shows a valid service of process under section 2602, Rev. Gen. Stat. 1920, which is as follows:

'2602. Service on agent of firm or copartnership; Proviso.--That in all cases where any firm or copartnership shall conduct or carry on a business, or business venture, in the state of Florida, or shall have an office or agency in the state of Florida, service or process may be made upon any business agent or accredited representative of said firm or copartnership, and such service shall be binding upon the said copartnership and the individual members thereof:

'Provided, That in all cases it shall appear that personal service cannot be made upon such individual copartners, or either of them, in accordance with the statutes now of force in this state; and, Provided further, That this section shall apply only to firms and copartnerships composed wholly of persons not resident in this state.'

Mandamus is an extraordinary remedy. It is axiomatic that the writ will not be allowed in cases of doubtful right, but it must appear, amongst other things, as a prerequisite to the issuance of the writ, that the relator has a clear, legal right to the performance by the respondent of the particular duty in question. Myers v. State ex rel. Thompson, 81 Fla. 32, 87 So. 80; State ex rel. Ellis v. Atlantic Coast Line R. R. Co., 53 Fla. 650, 44 So. 213, 13 L. R. A. (N. S.) 320, 12 Ann. Cas. 359; State v. Greer, 88 Fla. 249, 102 So. 739, 37 A. L. R. 1298.

The method of serving process authorized by section 2602, supra, is in the nature of substituted service. 32 Cyc. 461. Statutes authorizing service of that character are strictly construed. Gage v. Riverside Trust Co. (C. C.) 156 F. 1002. In order to render such service of process effective, the plaintiff must bring himself clearly within the provisions of the statute authorizing it. See Barwick v. Rouse, 53 Fla. 643, 43 So. 753; and Kibbe v. Benson, 84 U.S. (17 Wall.) 624, 21 L.Ed. 741, which are illustrative of that proposition in respect to the manner of service. See, also, 21 R. C. L. 1279 (23).

Section 2602, supra, applies exclusively to a limited and designated class of firms and copartnerships, namely, 'only to firms and copartnerships composed wholly of persons not resident in this state.' The provisions of the statute are therefore not available where nonresident members of a copartnership are sued solely as individuals, as, for example, for a joint tort or for a joint contract obligation unconnected with the partnership business. It is essential that the action be clearly against the defendants as copartners, otherwise the statute is not applicable.

In the action brought by relator as plaintiff in the circuit court, the defendants are styled in the summons 'John H. Swisher and Carl S. Swisher, nonresidents of the state of Florida, and copartners trading and doing business in the state of Florida under the firm name of John H. Swisher & Son.' Where defendants are so described or styled, the authorities are practically unanimous that the action is against the named defendants as individuals and not as copartners. The omission of the word 'as,' following the names of the defendants, and preceding the phrase 'copartners trading and doing business in the state of Florida under the firm name of John H. Swisher & Son,' renders the latter phrase merely describptio personae, and the action one against the named persons as joint defendants, but not necessarily as copartners. Liability as a copartner is only one species of joint liability. Thus it appear that, while the defendants are described or referred to as being copartners, it does not plainly appear that the action is brought against them solely as copartners, as distinguished from individual joint tort-feasors or joint obligors. Billings v. Finn, 55 Cal.App. 134, 202 P. 938; Good v. Red River Valley Co., 12 N.M. 245, 78 P. 46; Bastian v. Adams, 5 Neb. (Unof.) 32, 97 N.W. 231; Compton v. Smity, 120 Ala. 233, 25 So. 300; Peaks v. Graves, 25 Neb. 235, 41 N.W. 151; Johnson, Nesbitt & Co. v. First Nat. Bank, 145 Ala. 378, 40 So. 78; Burke v. Unique Printing Co., 63 Neb. 264, 88 N.W. 488; United Press v. A. S. Abell Co., 73 A.D. 240, 76 N.Y.S. 692; Nolin v. Mooty, 29 Ga.App. 97, 113 S.E. 814; Saxe v. Dooley, 7 Porto Rico Fed. 623; 30 Cyc. 565; 15 Encyc. Plead. & Prac-850.

The authorities tend to recognize a qualification of the rule last stated, which qualifications is to the effect that all the pleadings...