POLLIE M. JOHNSTONE, APPELLANT,
v.
J. W. ENGLISH ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLEE
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The court held that the statutory requirements for service by publication were met, and the chancellor's decision on due diligence was presumed correct.
Appellant challenged service by publication in a foreclosure action after a final decree was entered. The appellant argued that the appellee failed to…
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This appeal from a final decree of foreclosure is based on a challenge by the defendant of service upon him by publication. Appellee sued appellant to foreclose a mortgage in Dade County. Service was obtained on the defendant by publication as provided for by Chapter 48, Fla.Stat., F.S. A., on an affidavit of non-residence. When the mortgage was made the defendant was living in the city of Homestead in Dade County. When suit was commenced she was residing in Perry, Florida, in a part of the state distant or remote from Dade County.
After the final decree was entered the defendant filed a special appearance and motion to quash the service by publication, contending the plaintiff had failed to make due and diligent search and inquiry. The chancellor stayed the scheduled foreclosure sale and conducted a hearing on the merits of the defendant’s contention. At such hearing the chancellor had before him the affidavits submitted by the parties and heard the testimony presented and the arguments of counsel, following which he resolved the issue of due and diligent search and inquiry in favor of the plaintiff and entered an amended final decree.
Our examination of the record leads to the conclusion that the requirements of the publication service statute were complied *836with as those requirements are provided for in McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A.L.R. 731. Moreover, the decision of the chancellor, made after trial of that issue, comes to us with a presumption of its correctness which the appellant has not dispelled.
No reversible error having- been demonstrated the decree appealed from should be and hereby is
Affirmed.
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Cerella v. Rinker Materials Corp., 313 So. 2d 85 (Fla. 4th DCA 1975)…ngs and such testimony as may have been taken. Forasmuch as we know, the appealed ruling, which is pre [*86] sumptively valid, was given support before the court at that time. We affirm upon authority of Johnstone v. J. W. English Enterprises, Inc., 155 So. 2d 835 (3d DCA Fla.1963). Affirmed. OWEN, C. J., WALDEN, J., and BROWN, CECIL, Associate Judge, concur.…
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Palomino v. Fed. Nat'l Mortg. Ass'n, 504 So. 2d 445 (Fla. 3d DCA 1987)…. No record of that hearing was made. In denying Palomino’s motion to quash service of process, the trial court had to have found that Federal National had made the necessary diligent search and inquiry. See Johnstone v. J. W. English Enters., Inc., 155 So. 2d 835 (Fla. [*447] 3d DCA 1963); § 49.041, Fla.Stat. (1985). Since no record was made of the hearing, we must assume that the trial court acted correctly and inquired into the circumstances of Federal National’s search for Palomino, including the conceded…
Authorities Cited
- Nannie McDaniel v. McElvy, 108 So. 820 (Fla. 1926)