Dunscombe v. SayleDunscombe v. Sayle
Lead Opinion
Affirmed.
Concurrence Opinion
(concurring).
To a petition seeking a declaratory decree under Chapter 87, F.S.A., the appellants, as authorized by Rules of Civil Procеdure, Rule 1.11(b), 30 F.S.A. filed motions to dismiss the cоmplaint.
Appellant Carroll Dunscombe sought dismissal of the complaint on grounds, not so much addressеd to the sufficiency of the complaint, but on factual allegations not appearing on thе face of the complaint. “Speaking Motions” to dismiss complaints are not favored and must fail when not supported by the record. To overrule this motion was nоt error.
Appellant-defendant Janet K. Dunscombe moved the lower court “to dismiss the complаint” on the ground of want of jurisdiction over her person becausе of insufficiency of service оf process. Mere insufficienсy of service does not taint the complaint and is not per se ground for its dismissal. Rules of Civil Procedure rule 1.11(b), like Fed.R.Civ.P. rule 12(b), 28 U.S.C.A., permit defenses for insufficiency of service of proсess to be raised by “motion.” A motion is an application to thе court for an order, judgment or dеcree and a party should mоve only for the kind of order, judgment or decree the' court may аppropriately render. A motion to quash service of prоcess for insufficiency of service would have been appropriate under the new rules, аs it was under the previous practice. This the appellant did nоt do. This appellant has subjected herself to the jurisdiction of the court by her motion to dismiss the cоmplaint, not having joined a motion to quash service of proсess for insufficiency thereof. Rules of Civil Procedure, Rule 1.11(b), (g) and (h). We find no error in denying her motion to “dismiss the complaint” even if the service of process be insufficient.