THE HOTEL & RESTAURANT EMPLOYEES & BARTENDERS INTERNATIONAL UNION, AN UNINCORPORATED ASSOCIATION, APPELLANT,
v.
LAKE BUENA VISTA COMMUNITIES, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 4th DCA | 1977-09-20
No. 77-500
DAUKSCH and LETTS, JJ., concur.
349 So. 2d 1217 Florida District Court of Appeal, Fourth District (1977) Positive Treatment
Cited by 14 cases

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Synopsis

A union challenged the sufficiency of service of process in a mortgage nullification suit, arguing the trial court lacked authority to issue an alias summons before the original was returned unexecuted. The court affirmed, holding that even if improperly issued, the alias summons was not void and the union's general appearance waived any jurisdictional defect.


Holding

The court held that although the alias summons may have been improvidently issued without prior court authorization, it was not void and was sufficient under the circumstances. Additionally, the union's filing of a Notice of Appearance constituted a general appearance that subjected it to the court's jurisdiction and precluded later challenges to the sufficiency of process.


Headnotes

[1] An alias summons, even if improvidently issued, is not void and may be sufficient under the circumstances.

[2] A trial court may approve the issuance of an alias summons after the fact, even if proper procedure was not followed in obtaining it.

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Key Quotes

“the alias summons, even if improvidently issued, was not void and, under the circumstances of this case, was sufficient”

The court's holding that procedural defects in issuance did not invalidate the alias summons

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Facts & Procedural History

Lake Buena Vista Communities, Inc. sued to nullify a mortgage held by the Hotel & Restaurant Employees & Bartenders International Union on real proper…

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Opinion of the Court
ALDERMAN, Chief Judge.

ALDERMAN, Chief Judge.

The defendant, The Hotel & Restaurant Employees & Bartenders International Union, seeks dismissal of the plaintiff’s complaint based upon an alleged insufficiency of process. We find no reversible error and affirm.

The plaintiff, Lake Buena Vista Communities, Inc., filed suit in Orange County, Florida, to nullify a mortgage held by the defendant on real property owned by the plaintiff in that county. The original summons was issued by the Clerk of the Circuit Court on December 21, 1976, and the plaintiff attempted to serve the defendant at its main office in Hamilton County, Ohio. On January 7, 1977, the plaintiff, in writing, advised the Clerk that it had been unable to find anyone in Ohio upon whom process could be served, but had learned that the president of the defendant union was in Miami. The plaintiff requested and the Clerk issued an alias summons; later that same day the alias summons was served upon the union’s president in Miami. At the time the alias summons was issued, the original summons had not been returned to the Clerk’s office; it was; however, subsequently filed on January 17, 1977, with a return indicating that the defendant could not be located in Hamilton County, Ohio. On January 18, 1977, a “Notice of Appearance” was filed by the attorneys representing the defendant; subsequently, on January 27, 1977, the defendant filed its motion to dismiss.

The defendant’s only point on appeal is that the Clerk has no authority to issue an alias summons until the original is returned “not executed or returned improperly executed.” It relies upon that portion of the Fla.R.Civ.P. 1.070(b) which provides:

“When any process is returned not executed or returned improperly executed for any defendant, the party causing its issuance shall be entitled to such additional process against the unserved party as is required to effect service.”

The defendant contends, since at the time the alias summons was issued the original summons had not been returned “not executed or returned improperly executed”, that the alias summons was improperly issued and therefore insufficient. We reject this contention and hold that the alias summons, even if improvidently issued, was not void and, under the circumstances of this case, was sufficient.

Trawick’s Florida Practice and Procedure, Section 8.3 (1975), correctly points out that when the original summons is not returned, an alias summons can be authorized by the court. The proper procedure is to file a motion to obtain such authorization, alleging the need for alias summons and the reason the original summons has not been returned. This procedure was not followed in the present case, but the error was harmless because the trial court would have been justified in approving the issuance of an alias summons if a proper motion had been made prior to the return of the original summons. Although the plaintiff should have obtained the court’s authorization in advance, we find no abuse of discretion on the part of the trial court in approving the issuance of the alias summons, after the fact.

Additionally, it appears that the “Notice of Appearance” filed by defendant’s attorneys in this case was a general appearance which subjects the defendant to the jurisdiction of the court and precludes a later challenge as to the sufficiency of proc ess. A defendant may not make a general appearance and later repudiate it by attacking the court’s jurisdiction over him. Royal Industries, Inc. v. Birdsong, 340 So. 2d 526 (Fla. 1st DCA 1976).

AFFIRMED and REMANDED.

DAUKSCH and LETTS, JJ., concur.


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Citator

Cited By

  • Pub. GAS Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla. 1982)
    …of our sibling courts of appeal. Fulmer v. Northern Central Bank, 386 So. 2d 856 (Fla. 2d DCA 1980); Marine Distributors v. Kelly [374 So. 2d 592 (Fla. 5th DCA 1979)] supra; Hotel and Restaurant Employees Union v. Lake Buena Vista Communities, Inc., 349 So. 2d 1217 (Fla. 4th DCA 1977); Viator v. Morgan Construction Co., 344 So. 2d 657 (Fla. 1st DCA 1977), cert. denied, 352 So. 2d 173 (Fla.1977); Royal Industries, Inc. v. Birdsong, 340 So. 2d 526 (Fla. 1st DCA 1976), cert. denied, 351 So. 2d 408 (Fla.1977)...…
  • Crews v. The Dania Bank, 352 So. 2d 900 (Fla. 4th DCA 1977)
    …DAUKSCH, Judge. Affirmed on authority of The Hotel & Restaurant Employees & Bartenders International Union v. Lake Buena Vista Communities, Inc., 349 So. 2d 1217 (Fla.4th DCA 1977) and Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Construction Co., 166 So. 2d 889 (Fla.1964). AFFIRMED. GROSS and LETTS, JJ., concur.…
  • Weatherhead Co. v. Coletti, 392 So. 2d 1342 (Fla. 3d DCA 1980)
    …ect conflict with decisions of each of our sibling courts of appeal. Fulmer v. Northern Central Bank, 386 So. 2d 856 (Fla. 2d DCA 1980); Marine Distributors v. Kelly, supra; Hotel and Restaurant Employees Union v. Lake Buena Vista Communities, Inc., 349 So. 2d 1217 (Fla. 4th DCA 1977); Viator v. Morgan Construction Co., 344 So. 2d 657 (Fla. 1st DCA 1977), cert. denied, 352 So. 2d 173 (Fla.1977); Royal Industries, Inc. v. Birdsong, 340 So. 2d 526 (Fla. 1st DCA 1976), cert. denied, 351 So. 2d 408 (Fla. [*1345] 1…

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