Knight Manor One, Inc. v. Freeman

District Court of Appeal of Florida

Knight Manor One, Inc. v. Freeman

254 So. 2d 375, 1971 Fla. App. LEXIS 5736

CourtDistrict Court of Appeal of Florida

DecidedOctober 19, 1971

DocketNo. 71-816

StatusPublished

This text of 254 So. 2d 375 (Knight Manor One, Inc. v. Freeman) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Knight Manor One, Inc. v. Freeman, 254 So. 2d 375, 1971 Fla. App. LEXIS 5736 (Fla. Ct. App. 1971).

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Opinion

SWANN, Chief Judge.

Plaintiff, Knight Manor # One, Inc., takes this interlocutory appeal from an order which quashed service of process upon defendant, J. A. Freeman.

Plaintiff sought possession of certain premises based upon the alleged non-payment of rental money due under an oral agreement between the parties. Service of process upon the defendant was attempted under § 83.22, Fla.Stat., F.S.A., which provides :

“If the defendant cannot be found in the county in which the action is pending and either he has no usual place of [376]*376abode in the county or there is no person of his family above fifteen (15) years of age at his usual place of abode in the county, the sheriff shall serve the summons by attaching it to some part of the premises involved in the proceedings.”

The deputy sheriff [process server] testified he went to the premises involved in the proceedings at 9:00 A.M., on June 22, 1971 to personally serve the defendant. He knocked upon the door and left after he received no response. He returned at 12:30 P.M. the same day. When he received no response the second time, he posted a copy of the complaint and summons on the door of the premises. He testified that he saw no one in the vicinity from whom he could inquire as to the whereabouts of the defendant. We note June 22, 1971 was a Tuesday.

We agree with the trial judge that these actions are insufficient to establish that the “defendant cannot be found in the county” in which the action was pending. See Broward Drainage District v. Certain Lands, 160 Fla. 120, 33 So.2d 716 (1948).

The order appealed is

Affirmed.

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SWANN, Chief Judge.

Plaintiff, Knight Manor # One, Inc., takes this interlocutory appeal from an order which quashed service of process upon defendant, J. A. Freeman.

Plaintiff sought possession of certain premises based upon the alleged non-payment of rental money due under an oral agreement between the parties. Service of process upon the defendant was attempted under § 83.22, Fla.Stat., F.S.A., which provides :

“If the defendant cannot be found in the county in which the action is pending and either he has no usual place of [376]*376abode in the county or there is no person of his family above fifteen (15) years of age at his usual place of abode in the county, the sheriff shall serve the summons by attaching it to some part of the premises involved in the proceedings.”

The deputy sheriff [process server] testified he went to the premises involved in the proceedings at 9:00 A.M., on June 22, 1971 to personally serve the defendant. He knocked upon the door and left after he received no response. He returned at 12:30 P.M. the same day. When he received no response the second time, he posted a copy of the complaint and summons on the door of the premises. He testified that he saw no one in the vicinity from whom he could inquire as to the whereabouts of the defendant. We note June 22, 1971 was a Tuesday.

We agree with the trial judge that these actions are insufficient to establish that the “defendant cannot be found in the county” in which the action was pending. See Broward Drainage District v. Certain Lands, 160 Fla. 120, 33 So.2d 716 (1948).

The order appealed is

Affirmed.

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254 So. 2d 375, 1971 Fla. App. LEXIS 5736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knight-manor-one-inc-v-freeman-fladistctapp-1971.

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