United States v. St. Paul Mercury Insurance Company

• Decision Date: 18 July 1966
• Docket Number: No. 22345.,22345.
• Citation: 361 F.2d 838
• Parties: UNITED STATES of America for the Use of Theodore A. TANOS, Appellant, v. ST. PAUL MERCURY INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

361 F.2d 838 (1966)

UNITED STATES of America for the Use of Theodore A. TANOS, Appellant, v. ST. PAUL MERCURY INSURANCE COMPANY, Appellee.

No. 22345.

United States Court of Appeals Fifth Circuit.

May 31, 1966.

Rehearing Denied July 18, 1966.

Richard H. W. Maloy, Coral Gables, Fla., Helen Tanos Hope and Alfred Bieley, Miami, Fla., for appellant.

Robert M. Sturrup, Don R. Livingstone, Dean & Adams, Miami, Fla., for appellee.

Before PHILLIPS,^* JONES and BROWN, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge:

Tanos, a use plaintiff, obtained a money judgment in the United States District Court for the District of Puerto Rico on July 3, 1962, which became final. He thereafter instituted this action in garnishment in the United States District Court for the Southern District of Florida, naming St. Paul Mercury Insurance Company¹ as garnishee. The writ of garnishment was issued and was served upon the Insurance Company by a Florida county sheriff. The court sustained the Insurance Company's motion to quash the service of the writ on the ground that the sheriff was not authorized to serve the writ. Thereafter, Tanos caused a second writ of garnishment to be issued, which was served on the Insurance Company by the United States Marshal. The garnishee filed an answer to the writ, denying it was indebted to the judgment debtor, or had in its possession any money, goods, chattels, credits, or effects of the judgment debtor.

The Insurance Company was the surety on a supersedeas bond, given to supersede a judgment running in favor of the judgment debtor. The judgment had become final. Other persons were claiming the amount due on such judgment, adversely to the judgment debtor. After the service of the first garnishment writ had been quashed and prior to the time the second writ of garnishment was served, the Insurance Company had obtained an order from a state court permitting it to deposit in the registry of such court the full amount due on the superseded judgment, and the Insurance Company had so deposited such amount. Accordingly, at the time the second writ of garnishment was served, the Insurance Company was no longer indebted to the judgment debtor. From a summary judgment in favor of the Insurance Company, Tanos has appealed.

The sole question presented is whether the court erred in quashing the service of the first writ of garnishment.

Rule 1.3(c) of the Florida Rules of Civil Procedure (30 F.S.A., page 18) in part here material provides:

"(c) Service — By Whom Made. Service of process may be made by any officer authorized by law to serve process; but if such officer shall, for any reason be disqualified or unable to act, the Court may appoint any competent person not interested in the case on trial to serve such process."

Rule 4(c) of the Federal Rules of Civil Procedure in part here material provides:

"(c) By Whom Served. Service of all process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose, * * *." Italics ours.

Rule 64 of the Federal Rules of Civil Procedure in part here pertinent provides:

"At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought, subject to the following qualifications: (1) any existing statute of the United States governs to the extent to which it is applicable; * * *. The remedies thus available include * * * garnishment, * * *."

Rule 1.3(c) of the Florida Rules of Civil Procedure is a rule applicable generally to service of process in civil actions, and is not limited in its application to service of writs of garnishment, or other supplementary writs.

Moreover, the Federal Rules of Civil Procedure have statutory effect² and Rule 64, supra, provides that "any existing statute of the United States governs to the extent to which it is applicable."

We are of the opinion that Rule 4(c), supra, governs the service of writs of garnishment issued in a proceeding in a federal court, rather than Rule 1.3(c), supra, which is not a rule peculiarly applicable to service of writs of garnishment.³

We conclude the order quashing the service was proper.

Affirmed.

JOHN R. BROWN, Circuit Judge (dissenting):

In spite of the fact that the Federal Rules dealing with service of process, F.R.Civ.P. 4, and garnishment, F.R.Civ. P. 64 and 69,¹ have been consistently amended to allow resort to state procedure in the Federal District Courts, and in spite of the fact that the Appellee-Garnishee got all the notice it was entitled to under Florida, and federal, law, the Court, by relying on two easily distinguishable Tenth Circuit decisions and without much mention of the law of Florida applicable to the facts of this case, holds that it makes a difference whether the writ of garnishment issued by the Clerk of the Federal Court is delivered by a man wearing a star-shaped, five-pointed rather than a shield-shaped, eagle-topped badge. Believing that the Rules do not require such a formalistic, ritualistic distinction, I respectfully dissent from the Court's conclusion that the United States Marshall and only the United States Marshal must serve such a writ.

Before explaining why I must dissent, I deem it appropriate and necessary to add these undisputed record facts to the majority's description of the events which give rise to this appeal. First, Tanos' affidavit application for the issuance of the original writ of garnishment did not request that the Clerk of the District Court address it to any Florida Sheriff. Nevertheless, the Clerk, who is authorized to issue the writ by virtue of Rule 4(a) and 77(c),² expressly directed the writ "TO THE UNITED STATES MARSHAL, AND OR THE SHERIFFS AND CONSTABLES OF THE STATE OF FLORIDA."³ Second, the Florida sheriff to whom the writ was delivered⁴ served the writ, not upon the Insurance Company, but upon the State Insurance Commissioner⁵ as required by the terms of the writ⁶ and Florida law under which there was one and only one way the Insurance Company could have been served, and that was by substituted service upon the Commissioner who then had to mail a copy of the writ to a person designated by the Company.⁷ The process server, neither seeking nor seeing any official of the Insurance Company, was thus two steps removed from the defendant: (1) the Insurance Commissioner and (2) the United States postman. Third, on the same day that the Insurance Commissioner received the writ and acknowledged thereon "Service of the within WRIT OF GARNISHMENT accepted by me on behalf of the garnishees, ST. PAUL MERCURY INSURANCE COMPANY," he sent a copy of the writ, together with a statement that the writ had been served on him by the sheriff, by registered mail to the Insurance Company's president.

From these additional facts — presumably not considered by the Court — it is clear that we are here dealing with a case of substituted, rather than personal, service of process. Since the Insurance Company does not claim any impropriety in the action of the Insurance Commissioner or any deficiency in the notice it promptly received from him, and since substituted service on the Commissioner is the sole method by which an insurance company can be served under Florida law, the sole question boils down to this: does it make any difference under Rule 4(c) whether the United States Marshal or the Florida Sheriff delivers the writ of garnishment to the State Insurance Commissioner whose function is then to send it on by mail which he did?⁸

The purpose of service of process being notice to the parties involved, where personal service is required there might be justification for a strict application of the demand of Rule 4(c) that process be served by a Marshal or by someone specially appointed by the District Court to serve process.⁹ For personal service is required in order to give actual notice and demanding that such service be made by a person of integrity and experience not only protects the defendant from harassment by overzealous or unscrupulous process-servers, but assures the Court, through the server's return, that the proper person was actually notified of the pending litigation.

But this is not a case of personal service. This is a case of substituted service on a State officer as the defendant's statutory agent for service of process. And substituted service does not have to give actual notice so long as it provides reasonable probability of such notice. Service upon the Insurance Commissioner as the defendant's statutory but otherwise fictional agent is effective and binding provided that he promptly forwards by mail to the person designed by the defendant a copy of the process so served. The person so designated need not be an agent of the defendant, and it makes no difference that the person so designated then fails to notify the defendant. Actual notice is immaterial. The Court need only assure itself that there is a reasonable probability that the defendant was notified, and this assurance is provided by the Commissioner's acknowledgment that he has accepted service on behalf of the defendant and by the presumption — here unchallenged — that the Commissioner forwarded¹⁰ a copy of the writ as the law requires.

The process server never sees, never looks for, the defendant. His job is easy. He need only deliver a copy of the writ to the Insurance Commissioner's office in a Florida State office building. Indeed, he fails in his job if he goes elsewhere and seeks out the defendant insurer (see note 7, supra). There is no danger that he will serve the wrong person, for there is only one Insurance Commissioner and the location of his office is common knowledge. There is...