IN RE THE ESTATE OF GEORGE F. PECK, DECEASED. EARL J. RUCKBESCHEL, APPELLANT.
v.
JOHN VAN SWEDEN, AS EXECUTOR OF THE ESTATE OF GEORGE F. PECK, DECEASED, APPELLEE
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.
In this probate appeal, the Florida District Court of Appeal reversed an order quashing service of process against an estate executor. The court held that an order to abate proceedings for defective service does not dismiss the underlying petition, and once proper service is effected, the defendant must respond rather than move to quash.
An order to abate suspends an action until the defect is remedied but does not dismiss the petition. Once proper service is accomplished, the defendant must respond to the petition rather than move to quash, absent a showing that the complaint is defective or the defendant will be prejudiced.
[1] A plea in abatement ordinarily suspends an action until the complained-of defect is remedied, but does not dismiss the underlying action.
[2] Once a defect in service of process is remedied, a defendant must respond to the original petition without the need for refiling.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A plea in abatement ordinarily suspends an action until the complained of defect is remedied.”
Establishes the legal standard that abatement does not dismiss but merely suspends proceedings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEarl Ruckbeschel filed a petition to revoke the will of George F. Peck. The petition named John Van Sweden as executor but initially served him only i…
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 Petition For Revocation Of Probate cases and more on FLexlaw
SCHEB, Judge.
This is an appeal from an order quashing service of process against the executor of the estate of George F. Peck, deceased. We refer to the appellant, Earl Ruckdeschel, as petitioner as he appeared in the trial court where he sought to revoke probate of the decedent’s will.
Although the petition for revocation named the appellee, John Van Sweden, as executor, the citation to appear was directed to and served upon Van Sweden as an individual. Van Sweden, who was also a beneficiary under the will, moved to abate the proceedings on grounds the petitioner failed to join an indispensable party, that is to say, himself in his representative capacity of executor.
The trial court granted the motion and ordered the proceedings abated. Subsequently, a proper citation was issued and served upon Van Sweden, as executor. At that point Van Sweden, as executor, moved to quash the process contending no new petition for revocation had been filed. The trial judge apparently concluded his order to abate had the effect of dismissing the proceedings and that since no further petition had been filed, there were no proceedings before the court.
On October 16, 1975, the trial judge ordered the process “. . . quashed and annulled with prejudice, and said Executor shall go hence without day.” This timely appeal by petitioner Ruckdeschel ensued. We think the court erred.
We reverse.
A plea in abatement ordinarily suspends an action until the complained of defect is remedied. Trawick, Florida Practice and Procedure, § 10-3. Here, while the effect of the order to abate was to hold the matter in abeyance, there was no dismissal of the petition.
Therefore, once the proper citation was issued and correctly served, it became incumbent upon Van Sweden, as executor, to respond. See DeVaney v. Rumsch, Fla.1969, 228 So. 2d 904; American Baseball Cap., Inc. v. Duzinski, Fla.App.1st 1975, 308 So. 2d 639, which hold that in the absence of a showing that the complaint is defective or that the defendant will be prejudiced, the plaintiff should be allowed to reserve process without refiling the complaint. No attack is made here on the sufficiency of the petition for revocation and there was no showing of prejudice to the estate.
Accordingly, the order of October 16, 1975, is reversed and the cause is remanded for further proceedings consistent with this opinion.
HOBSON, A. C. J., and GRIMES, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Helene K. Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000)…el.” DeWitt, 408 So. 2d at 221. As we noted earlier, the count for tortious interference was abated before the offer of judgment was made. The effect of abatement in Florida has been characterized as a suspension of an action, In re Estate of Peck, 336 So. 2d 1230 (Fla. 2d DCA 1976), as well as a dismissal without prejudice, Moresca v. Allstate Ins. Co., 231 So. 2d 283 (Fla. 4th DCA 1970).1 Regardless of whether the abatement of the count for damages amounted to a dismissal or a suspension, we conclude that t…
-
Dussich v. Dussich, 449 So. 2d 395 (Fla. 4th DCA 1984)…nd costs. This appeal ensued. Since dissolution actions are governed by equitable principles, we think it is more appropriate to construe the order of abatement as granting an indefinite stay rather than a dismissal. Cf. Ruckdeschel v. Van Sweden, 336 So. 2d 1230 (Fla. 2d DCA 1976). With this characterization, we approve the order of abatement. Entry of an indefinite stay, however, ineluctably leads us to conclude that the trial court abused its discretion by failing to award temporary attorney’s fees and…
Authorities Cited
- DeVANEY v. Bernard J. Rumsch, M.D., 228 So. 2d 904 (Fla. 1969)
- Am. Baseball CAP, Inc. v. Duzinski, 308 So. 2d 639 (Fla. 1st DCA 1975)