American Bank & Trust Co. v. Lyle

130 So. 622, 100 Fla. 965

• Court: Supreme Court of Florida
• Decided: October 21, 1930
• Status: Published

Opinion

Whitfield, P. J.

— The writ of error herein was taken to an order quashing and dissolving a writ of garnishment because the writ was addressed “to the sheriff or constable of any county,” instead of “to the sheriff or other proper officer of the county in' which the garnishee may reside,” as required by Section 5287 (3434) Compiled General Laws 1927.

The garnishee appeared in the cause by counsel and after motions by the defendant to quash and dismiss the writ of garnishment and to quash the service of the writ, the plaintiff moved to amend the writ.

The court ordered that the motions to quash the service and to dismiss the writ of garnishment be granted and that said writ be “quashed and dissolved” with leave to amend the writ; and “that said amended writ of garnishment be served upon said” garnishee “before the same shall become effective. ’ ’

Even if the writ was defective because it was directed “to the sheriff or constable of any county” instead of to the sheriff of the county in which the garnishees resided, the writ was not void, and the garnishee bank was served in the county of its domicile and appeared in the cause by counsel. The writ if defective was amendable and the motion to amend should have been granted, without dissolving the writ.

Reversed for appropriate proceedings.

Strum and Buford, J. J., concur. Terrell, C. J., and Ellis and Brown, J. J., concur in the opinion and judgment.