Opinion
No. 65-144.
May 11, 1965. Rehearing Denied June 7, 1965.
Appeal from the Civil Court of Record for Dade County, Leland B. Featherstone, J.
Klein, Tannenbaum, McGovern, Miami, for appellant.
David D. Phillips and Herbert Friesner, Miami, for appellee.
Before TILLMAN PEARSON, CARROLL and HENDRY, JJ.
Appellant-defendant prosecutes this interlocutory appeal from an order denying his motion to dismiss for lack of jurisdiction.
Plaintiff-appellee, a non-resident of Florida, filed a complaint styled "Complaint In Action Ex Contractu", joining appellant Ray Payton, a non-resident, as principal defendant and the Five Points National Bank of Miami, as garnishee. Plaintiff then served the bank with a Writ of Garnishment. The suit was quasi in rem, as plaintiff sought to garnish a bank account of defendant Payton in garnishee bank. Mr. Payton, who was not personally served, made a special appearance by which he sought to dismiss the cause and dissolve the writ of garnishment on the ground that the court lacked jurisdiction.
Clearly, personal service of process on a non-resident principal defendant is not required to gain quasi in rem jurisdiction over his property within this state by way of garnishment.
Harris Co. Advertising, Inc. v. Republic of Cuba, Fla.App. 1961, 127 So.2d 687.
It is appellant's contention that by virtue of the language of Pennoyer v. Neff, as quoted in the Harris Co. Advertising, Inc. v. Republic of Cuba case, a quasi in rem action is not available to a non-resident plaintiff against a non-resident principal defendant.
95 U.S. 714, 24 L.Ed. 565 (1878).
Supra, note 1 at 693.
Even if a proper construction of the dictum of Pennoyer is as appellant contends, a contrary result has been reached in numerous cases decided subsequent to Pennoyer.
e.g. Sheldon v. Blanvelt, 29 S.C. 453, 7 S.E. 593, 1 L.R.A. 685 (1888); Hodgson v. Southern Building Loan Ass'n, 91 Md. 439, 46 A. 971, (1900); Morrison v. Illinois Cent. R. Co., 101 Neb. 49, 161 N.W. 1032 (1917). See also Anno: 14 A.L.R.2d 420 et seq.
We perceive the majority view to be as follows:
"There can be no doubt that a non-resident may maintain an ordinary action upon a money demand * * * without regard to the place where the cause of action arose; and, as an attachment is nothing more than a remedy in aid of an ordinary action, we see no reason why such non-resident may not invoke such remedy just as well as a citizen of this state, unless there is something in the provisions of our attachment law which confine the benefits afforded by it to citizens or residents of this state."
Sheldon v. Blanvelt, 29 S.C. 453, at 497, 7 S.E. 593 at 597 (1888).
Florida prescribes no limitation regarding residency of a plaintiff to avail himself of garnishment procedure. We do not feel that due process requires us to judicially engraft upon the statute such a limitation.
Ch. 77.01 F.S., F.S.A. Right to Garnishment:
"Every person who shall have brought a suit to recover a debt or shall have recovered a judgment in any court of this state against any person, * * * shall have a right to a writ of garnishment, * * *."
The order appealed is therefore affirmed.
Affirmed.