DONALD DEXTER, APPELLANT,
v.
HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF HOLLYWOOD, A UNITED STATES CORPORATION, ET AL., APPELLEES
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Appellant Dexter challenged an order denying his motion to quash constructive service of process by publication and a default judgment entered against him in a foreclosure action. The appellate court affirmed the constructive service but reversed the default judgment, finding that the trial court erred by entering a default without providing Dexter an opportunity to respond.
The trial court's order denying the motion to quash constructive service of process by publication is affirmed, as the evidence established that due and diligent search and inquiry had been made. However, the default judgment entered against Appellant is reversed because the trial court erred in entering a default without providing Appellant the opportunity to plead responsively.
[1] A default judgment entered without providing the defendant an opportunity to plead responsively is erroneous.
[2] An order denying a motion to quash constructive service of process by publication may be affirmed if the supporting affidavit strictly conforms to statutory requirements…
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Join FLexlaw to unlock all legal intelligence“the trial court erred in entering a default against Appellant without providing him the opportunity to plead responsively”
Establishes the fundamental procedural error that led to reversal of the default judgment
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Join FLexlaw to unlock all legal intelligenceA motion to quash constructive service of process by publication was filed by Appellant Dexter, accompanied by his affidavit. Appellees filed an affid…
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SMITH, CULVER, Associate Judge.
These’ are consolidated appeals from an order and final judgment entered by the court below. The order of June 23, 1975, denied Appellant’s motion to quash constructive service of process by publication and entered a default against him. The final judgment of July 23, 1975, was one of foreclosure. Appellant appealed the entry of the order and the judgment. The appeals were consolidated.
Appellees have conceded in their brief and argument before this Court that the trial court erred in entering a default against Appellant without providing him the opportunity to plead responsively. This leaves us with the question of the correctness of the court’s order denying Appellant’s motion to quash service. This motion to quash was accompanied by Appellant’s affidavit. An affidavit-in support of constructive service was filed on behalf of Ap-pellees. This affidavit strictly conforms to the requirements of Section 49.041, Florida Statutes. Hearing was held on the Appellant’s motion to quash after due notice. The trial court’s order reflects that Appellant did not appear in person or thru counsel. Its order further states that it heard live testimony of the litigants and counsel to ascertain whether due and diligent search and inquiry had been made to determine the last known residence of the Appellant. The trial court’s findings and order reads:
1. That more than due and diligent search and inquiry was made to determine the last known residence of the said Donald Dexter and none could be found.
2. That the Crossclaiments would, not have reason to know the last known residence of the said Donald Dexter. 3. That the motion to quash constructive service of process by publication is hérein denied. 4. That a default be and is herein ordered as to the defendant, Donald Dexter. This constitutes a finding of fact from evidence presented. Appellant was not present nor represented to present evidence in contradiction. We have reviewed the record and briefs. Appellant requested oral argument before this Court, but did not appear. The order of the trial court denying Appellant’s motion to quash constructive service of process is affirmed. The portion of its order entering a default is reversed. The final judgment of foreclosure is vacated only as it applies to the Appellant, Donald Dexter. The cause is hereby remanded for further proceedings.
Affirmed in part and reversed in part.
CROSS, J., and.MASON, ERNEST E„ Associate Judge, concur.