Taylor v. Lopez, 77-1158
| Decision Date | 18 April 1978 |
| Docket Number | No. 77-1158,77-1158 |
| Parties | Richard Eugene TAYLOR, Appellant, v. Rosa P. LOPEZ, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
James A. Baccus, Miami, for appellant.
Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for appellees.
Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
The appellees herein, plaintiffs below, filed a subrogation complaint for auto negligence against the appellant, defendant below. Summons was issued but returned by the Sheriff as "no service". Thereafter, an amended complaint was filed but no effort was made to obtain personal service. Appellees proceeded rather to effect constructive service by filing "Notice of Action" and affidavit by counsel in support of publication. A final Default Judgment was entered against appellant on September 2, 1976. On April 27, 1977, appellant filed a motion to set aside default judgment on the ground that the trial court lacked jurisdiction to enter said judgment since no legal service of process had been effected upon the appellant that would give the court proper jurisdiction over him. This motion was denied on April 28, 1977, and this appeal followed.
It seems elemental that service of process by publication may be had only if personal service of process cannot be had. Resort to constructive service by publication is predicated on "necessity", (25 Fla.Jur. Process, Sec. 31, page 409).
In the instant case, no summons was requested or issued against appellant seeking personal service of the amended complaint.
In attempting to obtain constructive service under F.S. 49.041, the affidavit filed as the basis for such service falls far short of the statutory requirements; e. g., it avers that "the present resident and mailing address of said appellant is as follows: 2741 N.W. 175 Street, # 1B, Miami, Florida", and publication was made addressed to Robert Eugene Taylor at that Miami address. If that was, in truth, the residence address of the appellant, he could have been personally served there.
The affidavit did not state the age of appellant, or aver that it was unknown. It was not stated whether he was a resident or nonresident, absent from the State, concealing himself, or any other statutory requirement to form the basis for good constructive service. In the 4th Dist.Ct. of appeal of Florida, case of Elmex Corp. v....
To continue reading
Request your trial
-
LEWIS v. FIFTH THIRD MORTGAGE Co.
...of process or ... service of process under s. 48.194 cannot be had.” § 49.021, Fla. Stat. (2007) (emphasis added); see Taylor v. Lopez, 358 So.2d 69, 70 (Fla. 3d DCA 1978) (holding that section 49.021 only authorizes service by publication when the plaintiff cannot effect personal service o......
-
Lewis v. Fifth Third Mortgage Company, No. 3D09-294 (Fla. App. 2/10/2010)
...process or . . . service of process under s. 48.194 cannot be had." § 49.021, Fla. Stat. (2007) (emphasis added); see Taylor v. Lopez, 358 So. 2d 69, 70 (Fla. 3d DCA 1978) (holding that section 49.021 only authorizes service by publication when the plaintiff cannot effect personal service o......
-
Bedford Computer Corp. v. Graphic Press, Inc.
...necessary. See Burton v. Burton, 448 So.2d 1229 (Fla. 2d DCA 1984); Shefer v. Shefer, 440 So.2d 1319 (Fla. 3d DCA 1983); Taylor v. Lopez, 358 So.2d 69 (Fla. 3d DCA 1978). If constructive service must be used, then it confers only in rem or quasi in rem jurisdiction upon the court. A persona......
-
Palomino v. Federal Nat. Mortg. Ass'n, 86-1434
...service of process, plaintiff must establish the threshold requirement: inability to effectuate personal service. Taylor v. Lopez, 358 So.2d 69 (Fla. 3d DCA 1978); §§ 49.021(1), .041, Fla.Stat. (1985); 1 see Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225 (Fla.1986); see also ......