Landers v. Dadeland Animal Hospital

14 Fla. Supp. 2d 134

• Court: Circuit Court for the Judicial Circuits of Florida
• Decided: November 21, 1985
• Docket: Case No. 85-191 AP
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM.

This appeal is taken by the Defendant from an order denying his motion for relief from default final judgment and to quash service of process.

A claim was filed against Defendant on August 19, 1982 and service of process was made personally upon Defendant on August 30, 1982. Default was entered on September 27, 1982 and final judgment entered on October 25, 1982.

On August 8, 1984 Defendant filed a sworn motion for relief from default final judgment and to quash service of process, alleging that at the time process was served on her, she was 15 years of age.

A hearing was held at which time the trial judge found he had jurisdiction and denied the motion.

We were not favored with a transcript of the hearing nor with the basis for the ruling by the trial judge.

If in fact Defendant was an unemancipated minor at the time of service, then service was void and the Court lacked jurisdiction. F.S. 48.041(1); Davie v. Calton, 453 So.2d 185 (Fla. 3rd DCA 1984); Williams v. Richardson, 432 So.2d 58 (Fla. 3rd DCA 1983).

However, if the minor was in fact emancipated at the time service was made, the Court did in fact have jurisdiction.¹

Accordingly, this matter is remanded to the trial court with instructions to hold an evidentiary hearing to determine the minor’s status at the time of original service.

1 The second point raised on appeal by Defendant lacks any merit.