37 Fla. 557 | Fla. | 1896
On a former day of the present term the writ of error in this case was dismissed, and a motion is now made to reinstate the case. The judgment sought to be reviewed was rendered in July, 1895, and writs of error and scire facias issued from the Circuit Court on the 5th day of October following, returnable to the first day of the January term, A. D. 1896, of this court. There has been no legal service of the scire facias, and it is not claimed here that such service was made. The contention in opposition to the motion to dismiss the writ of error was that the service of the scire facias had been waived; and if not waived, an alias should be issued, returnable to a day within the term of the court, or to a subsequent term. It was held in the opinion dismissing the writ of error that there had been no waiver of service of the scire facias, and while it appeared from affidavits then before the court that great diligence was shown in trying to make personal service on the defendant in error, there was negligence in not making service by leaving a copy of the writ at the usual place of abode of the defendant with some person of the family above fifteen years of age, and informing such person of the contents thereof. It clearly appeared from the affidavits then filed that the defendant did have a usual place of abode in Alachua county, where service could have been per
On the present motion it is contended that the case should be reinstated and an alias scire facias issued to bring the defendant in error before the court. One ground of contention is that copies of affidavits submitted in support of the motion to dismiss were not furnished plaintiffs in error, -and they had no opportunity of meeting them. From what is now made known to the court it appears that both parties disregarded the rule as to service -of copies of affidavits used on the motion to dismiss, but the submission was on briefs and affidavits, and the court was not advised as to any departure from the rule in furnishing copies of the affidavits submitted. Additional affidavits cov•ering the grounds embraced in the motion to dismiss
One of the alleged reasons assigned to reinstate is that the defendant in error is a bachelor, and has no family or relative, and the position assumed is that the writ was dismissed because the scire facias was not served by leaving a copy with a member of his family, when, as a matter of fact, he had none. The decision was not based upon this view, nor does the statute require in every case that the copy shall be left with a person of the family of the defendant. The direction that he may be served by leaving a copy at his usual place of abode with some person of the family above fifteen years of age, and informing such person of the contents thereof. Although Beall had no family of his own, service by leaving a copy with a proper person of the family in which he resided would have been sufficient. It is the failure to make such service when, as is evident to us, it could have been done, that sTlows the want of proper diligence in making the service.
This court has never decided that an alias scire facias on a writ of error after its return day could be issued when there has been no service of the original writ. It was said in Christopher vs. Newnham, 34 Fla. 370, 16 South. Rep. 274, that if it be that an alias scire facias can issue and be made returnable after the return day of the writ of error, the failure to issue and serve the original must not be attributable to any default on the part of the plaintiff in error. It has been repeatedly decided here that the issuance and service of a scire facias, in the absence of a waiver on the part of the defendant in error, are essential to give the court jurisdiction of his person;
In First National Bank vs. King, 36 Fla. 25, 18 South. Rep. 1, it was held that where a writ of error is issued and served within the six months limited for the suing out writs of error, and is made returnable to the proper time, it is not necessary that the scire facias shall be either issued or served within the limited six months, but may be issued and served after such time has expired, provided it is made returnable to the same time with the writ of error, and is served twenty-five days' before its return day. While the facts of this case are not the same as to the character or extent of the failure of duty to have the scire facias properly served as was shown in the case of Christopher vs. Newnham, supra, they bring it within the same principle, and our conclusion is that the motion to reinstate and the application for rehearing must be denied.
Order to be entered accordingly.