Johnstone v. J. W. English Enterprises, Inc.

155 So. 2d 835

• Court: District Court of Appeal of Florida
• Decided: August 20, 1963
• Docket: No. 62-672
• Status: Published

Opinion

PER CURIAM.

This appeal from a final decree of foreclosure is based on a challenge by the defendant of service upon him by publication. Appellee sued appellant to foreclose a mortgage in Dade County. Service was obtained on the defendant by publication as provided for by Chapter 48, Fla.Stat., F.S. A., on an affidavit of non-residence. When the mortgage was made the defendant was living in the city of Homestead in Dade County. When suit was commenced she was residing in Perry, Florida, in a part of the state distant or remote from Dade County.

After the final decree was entered the defendant filed a special appearance and motion to quash the service by publication, contending the plaintiff had failed to make due and diligent search and inquiry. The chancellor stayed the scheduled foreclosure sale and conducted a hearing on the merits of the defendant’s contention. At such hearing the chancellor had before him the affidavits submitted by the parties and heard the testimony presented and the arguments of counsel, following which he resolved the issue of due and diligent search and inquiry in favor of the plaintiff and entered an amended final decree.

Our examination of the record leads to the conclusion that the requirements of the publication service statute were complied with as those requirements are provided for in McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A.L.R. 731. Moreover, the decision of the chancellor, made after trial of that issue, comes to us with a presumption of its correctness which the appellant has not dispelled.

No reversible error having- been demonstrated the decree appealed from should be and hereby is

Affirmed.