LEE R. KING, APPELLANT,
v.
INSURANCE COMPANY OF NORTH AMERICA AND D.L. SMALL CORPORATION, A FLORIDA CORPORATION, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the testimony of the appellant and his wife was sufficient to impeach the sheriff's return of service, requiring the setting aside of the default judgment in garnishment.
[1] A sheriff's return of service is presumptively correct and can only be overcome by clear and convincing evidence.
[2] Testimony from a defendant and their spouse can be sufficient to impeach a sheriff's return of service.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceAppellant challenged service of process for a default judgment in garnishment. The sheriff's return indicated service, but appellant and his wife test…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Garnishment cases and more on FLexlaw
OTT, Chief Judge.
Default final judgment was entered against appellee D.L. Small Corporation in favor of appellee Insurance Company of North America. Default judgment in garnishment based on that final judgment was entered against appellant. Appellant attacks service of process in both instances; we reverse the judgment in garnishment only.
The sheriff’s return of service indicates that the writ of garnishment was individually served on appellant. The deputy effecting service did not testify at the hearing on appellant’s motion for relief from judgment. The correctness of the service was not supported by anything other than the facial validity of the return itself. On the other hand, appellant testified that he knew the deputy who signed the return of service, that he had never been served with a copy of the writ of garnishment, and that he learned of the existence of the writ of garnishment only after receiving a copy of the judgment in the mail from his attorney. Appellant’s wife testified that she works part-time in her husband’s business. She was also quite familiar with the deputy and had, in the past, been served by the deputy in question. She testified unequivocally that she had not been served with the writ of garnishment in this case.
A sheriff’s return of service is presumptively correct, and the invalidity of same can only be established by clear and convincing evidence. See Winky’s, Inc. v. Francis, 229 So. 2d 903 (Fla. 3d DCA 1970). We hold that the testimony of appellant and his wife meets this test, was sufficient to impeach the sheriff’s return, and requires the setting aside of the default judgment in garnishment. This accords with the liberal policy followed by the courts of this state in setting aside defaults to allow a trial on the merits where reasonable doubt exists. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962).
The default judgment in garnishment is VACATED and the case REMANDED for further consideration consistent with this opinion.
SCHEB and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Rindley v. Gory Associated Indus., Inc., 445 So. 2d 719 (Fla. 4th DCA 1984)…PER CURIAM. Reversed and remanded for further proceedings on the authority of King v. Insurance Company of North America, 426 So. 2d 1302 (Fla. 2d DCA 1983). LETTS, HURLEY and DELL, JJ., concur.…
-
Montano v. Montano, 472 So. 2d 1377 (Fla. 3d DCA 1985)…e or older and informing the person of their contents, (emphasis supplied) Although a return of service is presumptively correct, the invalidity of service may be established by clear and convincing evidence. King v. Insurance Co. of North America, 426 So. 2d 1302, 1303 (Fla. 2d DCA 1983); Winky’s, Inc. v. Francis, 229 So. 2d 903, 906 (Fla. 3d DCA 1969). The evidence presented to the trial court, consisting of appellant Montano’s affidavit and Mr. Mange’s deposition, confirmed the husband’s contention that h…
Authorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Winky's, Inc. v. Ivy M. Francis, 229 So. 2d 903 (Fla. 3d DCA 1969)