THE STATE OF FLORIDA EX REL. WESTRIDGE CORPORATION, RELATOR,
v.
C. E. CHILLINGWORTH, CIRCUIT JUDGE, RESPONDENT
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Westridge Corporation sought mandamus to compel a circuit judge to enter default judgment in garnishment proceedings where notice was published for over 60 days. The Florida Supreme Court held that Chapter 11364, Acts of 1925, which limits the notice period to 28-60 days, applies to garnishment proceedings and supersedes earlier general statutes, making the judge's refusal to enter judgment proper.
Chapter 11364, Acts of 1925, is applicable to garnishment proceedings in circuit court and establishes the controlling time limits of 28-60 days. The circuit judge properly declined to enter default judgment because the appearance day exceeded the statutory maximum of 60 days.
“The title to Chapter 11364, Acts of 1925, expresses the single general subject of the essentials and the publication of notices to appear in litigated cases in stated courts where constructive service of notice by publication is provided for”
Establishes that the 1925 statute's title is constitutional and addresses a single subject, validating its application to garnishment proceedings.
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Join FLexlaw to unlock all legal intelligenceIn garnishment proceedings, notice to the defendant was published weekly from September 20 to November 22, 1927, with a return day of December 5, 1927…
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Whitfield, J.
A petition in mandamus makes it appear that in garnishment proceedings in the Circuit Court, notice to the defendant was published under Sections 3423, 3453, Rev. Gen. Stats. 1920, Sections 5276, 5306, Comp. Gen. Laws 1927, once a week from Sept. 20, to Nov. 22, 1927, the return day being the rule day succeeding the last publication, i.e., December 5, 1927. The Circuit Judge declined to enter a default or a judgment in the cause, on the ground that the time elapsing between the date of the issuance of the notice of institution of suit and the return day is greater than that prescribed in Chapter 11364, Acts Extraordinary Session 1925, Section 4896, Comp. Gen. Laws 1927, which is “not less than twenty-eight days nor more than sixty days from the date of the making of the order.” The plaintiff insists that the cited sections of the general laws are applicable and have been complied with, and that Chapter 11364, Acts 1925, is not applicable and is unconstitutional because its title violates Section 16 of Article III of the Constitution by expressing a plurality of subjects.
The title to Chapter 11364, Acts of 1925, expresses the single general subject of the essentials and the publication of notices to appear in litigated cases in stated courts where constructive service of notice by publication is provided for; and provisions relating to such general subject and matters properly connected therewith, such as appear in the Chapter, may be enacted under such title. Both statutes appear in the Comp. Gen. Laws 1927, as Section 4896 and Sections 5276 and 5306. The compilers of the General Laws under Chapter 12039, Acts of 1927, had no authority to omit or to change the words of sections 3423, 3453, Rev. Gen. States. 1920, Sections 5276, 5306 Comp. Gen. Laws 1927, upon the theory that by implication such sections were repealed or superseded in whole or in part by Chapter 11364, Acts of 1925, Section 4896, Comp. Gen. Laws 1927.
As the appearance day stated-in the notice to the defendant in garnishment as published, was more than the maximum of sixty days, fixed in Chapter 11364, Section 4896 Comp. Gen. Laws 1927, which statute is applicable to garnishment proceedings in the Circuit Court, the Circuit Judge properly declined to enter a default or a judgbent in the garnishment proceedings.
As to whether mandamus is the.proper remedy see State ex rel. Burbridge v. Call, 41 Fla. 450, 26 So. R. 1016; State ex rel. v. King, 32 Fla. 416, 13 So. R. 891; State ex rel. v. Atkinson filed this term, 93 Fla. 366, 112 So. R. 64.
The petition for an alternative writ of mandamus to require the Circuit Judge to enter a default and final judgment upon the publication of notice as shown is denied.
Terrell, C. J., and Ellis, Strum, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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A. v. Johnson, 145 Fla. 258 (Fla. 1940)…e of attachment was- returnable sixty-five days from the first publication and, therefore, no jurisdiction was obtained by the court over the person of the defendant. Section 4896 C. G. L., 1927, State ex rel. Westridge Corporation v. Chillingworth, 98 Fla. 23, 122 So. 801. Obviously the judge of the circuit.court, sitting in the ejectment case, concluded that there was no service upon the defendant in that contest which would supply a foundation for the judgment and, therefore, the conveyances which foll…
Authorities Cited
- The State of Fla. ex rel. J. D. Matheson & Co. v. King, 32 Fla. 416 (Fla. 1893)
- The State of Fla. ex rel. Helen S. Burbridge v. Rhydon M. Call, 41 Fla. 450 (Fla. 1899)
- Broward Ests. Corp. v. The Hon. C. E. Chilingworth, 93 Fla. 366 (Fla. 1927)