Walton v. Walton, 6310
| Decision Date | 14 January 1966 |
| Docket Number | No. 6310,6310 |
| Parties | E. Margaret WALTON, Appellant, v. James B. WALTON, Appellee. |
| Court | Florida District Court of Appeals |
T. Richard Hagin, of Davis & Hagin, Bushnell, for appellant.
No appearance for appellee.
The appellant was the defendant in a suit for divorce filed by the appellee. Service of process was by publication, pursuant to the provisions of the Constructive Service of Process Statutes, Fla.Stat., Ch. 48, F.S.A.
The defendant moved to dismiss on the grounds that the plaintiff's allegations in his complaint and supporting affidavit did not meet the requirements for sworn statements necessary for service by publication, and therefore the court did not have jurisdiction over the person. The chancellor denied the motion in an order finding that the plaintiff had substantially complied with the applicable statute. It is from this order that interlocutory appeal by the defendant is taken.
Fla.Stat., Sec. 48.03(1), F.S.A., requires that, as a condition precedent to service by publication, there shall be filed in the cause a sworn statement by the plaintiff, his agent or attorney 'setting forth substantially the matter hereafter required.' Fla.Stat., Sec. 48.04, F.S.A., sets forth the allegations for the sworn statement in cases in which a natural person is defendant as:
'The sworn statement of the plaintiff, his agent or attorney, for service of process by publication against a natural person, shall show:
(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant; and,
* * *
* * *
'(3) In addition to the above, that the residence of such person is, either:
'(a) Unknown to the affiant; or
'(b) In some state or country other than this state, stating said residence if known; * * *.'
Appellant contends the service in this case was defective because the appellee's statement, while it alleged, inter alia 'that the defendant is a citizen and resident of Lewisburg, West Virginia, and receives her mail at P. O. Box 83 in said city,' it did not allege that 'diligent search and inquiry' was made to discover the residence of the defendant. In addition, we note that appellee also failed to allege that the residence 'is set forth * * * as particularly as is known.' While this latter omission was not specifically raised on appeal, we may notice it on our own motion since it relates to jurisdiction. See Florio v. State ex rel. Epperson, Fla.App.1960, 119 So.2d 305, 80 A.L.R.2d 1117.
Statutes authorizing constructive service of process must be strictly construed and exactly followed in order for a court to acquire jurisdiction. McGee v. McGee, 1945, 156 Fla. 346, 22 So.2d 788. Notwithstanding this rigidity however, substantial compliance with the essential requirements is all that may be necessary to accomplish the purpose of the constructive service statutes, which purpose is to give reasonably sufficient notice that is fair to the defendant and satisfies due process. Gribbel v. Henderson, 1942, 151 Fla. 712, 10 So.2d 734. See Fla.Stat., Sec. 48.03(1), F.S.A.
It is our view that the issue that emerges in this case can be broadly stated as whether, by strictly construing Fla.Stat., Sec. 48 .04, the allegations here 'substantially comply' with the essential statutory requirements.
In Eckersley v. Eckersley, 1946, 157 Fla. 722, 26 So.2d 811, the Supreme Court said:
'The statutory requirements prescribed in Section 48.04, supra, to be contained in a sworn bill or statement filed in every equity suit as a condition precedent for service of process by publication against a natural person are severable and the are framed to meet the different and varying conditions that may arise * * * and only such of the statutory requirements as are material or germane to the facts and conditions of a particular case need be stated.' (Emphasis added.) 157 Fla. at 724, 26 So.2d at 813.
In Eckersley, supra, the sworn statement alleged that 'the address and gplace of residence of the defendant is 8213 Linwood Avenue, Detroit, Michigan.' That Supreme Court held that in light of these direct, positive and unequivocal statements, it was unnecessary to allege diligent search and inquiry. The language in Eckersley parallels that used in Gribbel v. Hendrson, 1942, 151 Fla. 712, 10 So.2d 734, the court in the latter case saying:
'Other matters averred to be omitted from the 'sworn statement for process', such as diligent search to discover facts that are known, etc., are rendered immaterial by the direct positive statements in the sworn bill of complaint of such known matters as are material in this case to authorize the publication of process in substantial compliance with the statutes.' (Emphasis added.) 151 Fla. at 729, 10 So.2d at 741.
When viewed together, the Eckersley and Gribbel cases support the view that since the requirements of Fla.Stat., Sec. 48.04, are 'severable,' a 'positive and unequivocable' statement regarding the defendant's residence will render allegations of diligent search and inquiry 'immaterial.' It follows that failure to 'substantially comply' with the statute could not result from the omission of an allegation which is immaterial.
Applying this rationale to the facts, we observe that the major difference between the allegations in Eckersely and those here are that in the instant case the statement does not specify the exact residence address of the defendant. However, we believe that this difference is insignificant and that the allegation directly and positively stating that the defendant's place of residence is Lewisburg, West Virginia, excuses the failure to allege diligent search and inquiry.
McGee v. McGee, 1945, 156 Fla. 346, 22 So .2d 788, cited by appellant, does not compel a contrary result because the sworn statement in that case alleged that 'the address of the defendant is unknown,' but did not allege that diligent search and inquiry had been made. There were no allegations at all concerning residence and, under these facts, the court properly held that the sworn statement was not sufficient to support constructive service. McGee is clearly distinguishable on its facts from the instant case because here the allegation of residence is a direct statement of sufficient specificity to render diligent search and inquiry unnecessary. Viewed in this light, we find no inconsistency between McGee and our holding here.
As previously mentioned, we have discovered that the sworn statement also did not allege that the residence was stated 'as particularly as is known.' We do not believe this omission negates substantial compliance with the statute for two reasons.
First, this seems to be the kind of allegation which would be 'severable' and not 'essential,' provided other direct allegations of residence were made. This view finds support in the language of the Supreme Court in Gribbel v. Henderson, supra:
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