Wilson v. Milligan, 3095
| Decision Date | 07 December 1962 |
| Docket Number | No. 3095,3095 |
| Citation | 147 So.2d 618 |
| Parties | Irene Wells WILSON, Appellant, v. Herman D. MILLIGAN, Appellee. |
| Court | Florida District Court of Appeals |
R. G. Tittsworth, of Tittsworth & Tittsworth, Morris E. White and Marvin E. Barkin of Fowler, White, Gillen, Humkey & Trenam, Tampa, for appellant.
Oliver L. Green, Jr., of Oxford & Oxford, Lakeland, for appellee.
This is the third appearance of this cause before this court. Plaintiff, Herman D. Milligan, appellee here, filed his complaint against defendant, Irene Wells Wilson, appellant here, suing upon a judgment entered in his favor by the Circuit Court of Accomack County, Virginia. The court granted the defendant's motion to dismiss. Upon appeal, this court held that the complaint was adequate to withstand the motion to dismiss and reversed the judgment for the defendant. Milligan v. Wilson, Fla.App.1958, 107 So.2d 773. The specific issue determined there was, that in this action on a foreign judgment, the plaintiff is not required to allege more than the judgment and that questions of lack of jurisdiction should be brought forth in the answer.
The defendant answered alleging that the Virginia Court was without jurisdiction to enter the judgment in that the defendant did not appear in that action, was not personally served there, and service upon her was not proper under the Non-Resident Motorist Statute of Virginia, § 8-67.1 of the Virginia Code. The defendant also alleged that the only process on which the Virginia judgment was rendered was under the Non-Resident Motorist Statute, supra, and that the defendant, at all times material to that action, was a non-resident of Virginia and a resident of Florida; that the defendant was not the operator of the motor vehicle causing the alleged injuries to the plaintiff; that the operator of the motor vehicle, although alleged by the Virginia complaint to be the defendant's servant, agent or employee, was not the servant, agent or employee of the defendant when the cause of action arose and was not acting within the scope of any alleged agency or employment; that the Virginia complaint did not allege that at the time of the injury the operator of her motor vehicle was operating the same within the scope of his agency or employment, and that the operator was not operating the automobile as an employee or agent of the defendant; and, that the motor vehicle was not being operated by the defendant or an employee of the defendant within the scope of his employment or agency.
Both parties moved for summary judgment. The court entered summary judgment in favor of the defendant, for the reason that there was no allegation in the Virginia complaint that the defendant was a non-resident of the State of Virginia and, therefore, the record of the Virginia proceedings established the fact that that court was without jurisdiction to render said judgment and that the judgment was null and void. Upon appeal, this court noted that the Virginia record showed a certificate of service upon the Commissioner of Motor Vehicles and letters of compliance with the statute by the Commissioner and that copies of the notice of service were mailed to the defendant in Florida. The judgment was reversed for further proceedings consistent with that opinion. Milligan v. Wilson, Fla.App.1961, 130 So.2d 644. Upon remand, the plaintiff moved for summary judgment, relying entirely upon this court's last opinion. The court granted final summary judgment in favor of the plaintiff, stating that:
'The Motion for Summary Judgment is well taken in that all of the issues to be determined in this cause, as reflected by the pleadings and the exhibits attached thereto, were settled by the opinion.' (This was a reference to our opinion of 1961, supra.)
It is necessary to consider the one question on appeal in two parts; that is (1) whether or not all of the issues to be determined in this cause were settled by our last opinion; and if not, (2) does the record reveal a genuine issue of material fact, as to whether or not the defendant was amenable to service of process under the Virginia Code, thereby precluding the entry of a summary final judgment.
In determining whether or not all of the issues to be determined in this cause were settled by our opinion of 1961, supra, it is noted that that opinion dealt solely with the entry of summary judgment in favor of the defendant presented upon the defense of lack of jurisdiction of the Virginia court as alleged in the defendant's answer. The motion was supported by various documents from the record of the Virginia proceedings and the court, therefore, entered the summary judgment for the defendant on the ground that there was no allegation in the Virginia proceedings that the defendant was a non-resident at the time the cause of action accrued. The total effect of that opinion was to hold that the record of the Virginia proceedings did not establish the fact that the Virginia court did not have jurisdiction of the defendant in that proceedings and, therefore, the court was in error in granting the summary judgment for the defendant. On remand, the court was, therefore, in error in construing that opinion as having the effect of determining all of the issues in this cause. Under the prior decisions in this cause, it has been established that it is a valid defense to an action on a foreign judgment if the defendant establishes that the judgment was rendered without jurisdiction over the person of the defendant. Where there is such a jurisdictional defect, the foreign judgment is subject to collateral attack. The validity of the judgment is generally determined by the law of the State of Virginia, the place of its rendition.
The Statute involved is § 8-67.1 of the Code of Virginia, which is as follows:
'The acceptance by a nonresident of the rights and privileges conferred by article 6 (§ 46-110 et seq.) of chapter 3 of Title 46 as evidenced by his operation, either in person or by an agent or employee, of a motor vehicle, trailer or semitrailer hereunder, or the operation by a nonresident, either in person or by an agent or employee, of a motor vehicle, trailer or semitrailer on the highway in this State otherwise than under such article, shall be deemed equivalent to an appointment by such nonresident of the Commissioner of the Division of Motor Vehicles or his successors in office to be the true and lawful attorney of such nonresident upon whom may be served all lawful process against and notice to such nonresident in any action or proceeding against him growing out of any accident or collision in which such nonresident or his agent or employee may be involved while operating a motor vehicle, trailer or semitrailer on such highway and such acceptance or operation shall be a signification of his agreement that any such process against or notice to him which is so served shall be of the same legal force and validity as if served upon him personally in the county or corporation in which such accident or collision occurred or in which a resident defendant, if any, resides.
...
To continue reading
Request your trial
-
Harper ex rel. Daley v. Toler
...and then on appeal take[n] the contrary position that there was a material issue of fact on the same question." Wilson v. Milligan, 147 So.2d 618, 622 (Fla. 2d DCA 1962) (emphasis added). It is true that Harper both (a) asserted in the summary judgment proceedings that there were no dispute......
-
Daniel Laurent, Inc. v. Coral Television Corp., RMR-AD
...Corp., 197 So.2d 17 (Fla. 4th DCA 1967); First Mortgage Corp. of Stuart v. deGive, 177 So.2d 741 (Fla. 2d DCA 1965); Wilson v. Milligan, 147 So.2d 618 (Fla. 2d DCA 1962); Pancoast v. Pancoast, 97 So.2d 875 (Fla. 2d DCA 1957). See 10A Wright, Miller and Kane, Federal Practice and Procedure §......
-
Leaseco, Inc. v. Bartlett
...this issue by means of summary judgment. Understandably, appellee urges us to apply the principle enunciated in Wilson v. Milligan, Fla.App.1962, 147 So.2d 618 and Glens Falls Insurance Co. v. Fields, Fla.App.1966, 181 So.2d 187 under which appellants would be estopped to assert on this app......
-
Murrell v. Jupiter Corp.
...under review be and the same is hereby affirmed. Affirmed. 1 Geiser v. Permacrete, Inc., Fla.1956, 90 So.2d 610; Wilson v. Milligan, Fla.App.1962, 147 So.2d 618; Board of Public Instruction of Dade County v. Fred Howland, Inc., Fla.App.1970, 243 So.2d ...