PENTECOSTAL HOLINESS CHURCH, INC., A NON-PROFIT SOUTH CAROLINA CORPORATION, APPELLANT,
v.
FLOYD M. MAUNEY AND CONNIE MAUNEY, HIS WIFE, ET AL., APPELLEES
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The court held that even if the return of service was defective, the trial court's finding of fact, supported by evidence, that no members of a superior class were available for service, validated the service of process.
Appellant, a foreign corporation, challenged service of process, arguing the return did not show the absence of all members of a superior class as req…
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Appellant, a foreign corporation not qualified to transact business in Florida, brings this interlocutory appeal to review an order denying its motion to quash the purported service of process upon it.
The trial court found that service was made under the provisions of F.S.1967, Section 48.081(2), F.S.A. by serving an agent transacting business for the corporation in this state. Appellant contends that neither the return to the summons1 nor the facts established at the hearing on the motion 2 showed the absence of all members of a superior class, which is a condition precedent to the validity of service upon a member of any inferior class.
The trial court’s order recognized that the return to the summons failed to reflect the absence of all members of a superior class, but nonetheless found that based upon “stipulation in open court between counsel of both parties” there were no members of any superior class to be served in the State of Florida. The court concluded that this factual finding cured the defects in the return.
Our examination of the transcript of the hearing and the colloquy between court and counsel, convinces us that counsel for appellant did not stipulate that all members of the superior classifications of persons were absent from the state at the time of service of process. However, aside from the stipulation there was sufficient evidence before the lower court from which it might be reasonably found that there were no members of any superior class to be served in the State of Florida at the time of service of process. The order being sustainable under this theory, it is affirmed. 3
Affirmed.
WALDEN, C. J., and CROSS, J., concur.
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Citator
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- Largay Enters. Inc. v. Berman, 61 So.2d 366 (Fla. 1952)
- Drew Lumber Co. v. Scotia Walter, 45 Fla. 252 (Fla. 1903)
- Smith v. Bettinghaus, 178 So. 2d 201 (Fla. 2d DCA 1965)