Opinion
May 8, 1953. Rehearing Denied May 28, 1953.
Farish Farish, West Palm Beach, and Robert M. Avent, Jacksonville, for petitioner.
Miller, Miller Hewitt and Mizell Carmichael, West Palm Beach, for respondent.
A petition for writ of certiorari was filed for the purpose of having reviewed an order of the Circuit Judge with reference to the validity of an unsigned summons served upon the petitioner, and a supplemental order based upon the original order.
It appears that an unsigned paper was served upon the petitioner requiring him to answer a complaint which had been filed against him. The return shows a service of this paper by delivering a true copy of the "within purported unsigned original summons." A special appearance was filed solely for the purpose of moving the Court to quash the service of the so-called process upon the ground that the same was not signed as required by law and was, therefore, insufficient as a summons or process.
The Circuit Judge made an order quashing the service of process on the ground that "the original summons served * * * was not signed as required by law * *. However, the plaintiff is granted leave, and the Clerk is directed, to amend the original summons by placing thereon his signature, service to be effective from said date."
We thus have an adjudication by the Circuit Judge that the original summons was "not signed as required by law." This determination by the Circuit Judge was correct. 30 F.S.A. Common Law Rule 5 (b) provides:
"Upon the commencement of the action, summons shall be forthwith issued by the Clerk and delivered for service without praecipe."
When the Rule mandatorily requires that the summons shall be "issued by the Clerk", it requires that the Clerk, or his lawfully authorized deputy, sign such summons as a "testimonial by which the authenticity of the summons is made to appear." Sharman v. Huot, 20 Mont. 555, 52 P. 558, 560, 63 Am.St.Rep. 645; Pease v. Ritchie, 132 Ill. 638, 24 N.E. 433, 8 L.R.A. 566.
In order for a summons to be issued and to be effective as a means by which a party is brought into Court to answer a complaint, it is not only necessary that the forms be filled out giving the necessary information, but after this is done, it must be signed by the issuing officer or his duly authorized deputy in order to give it authenticity. The form of a blank stock certificate may be completely filled out, but it is not issued until some one, duly authorized, has signed it or taken other action to give it authenticity. The Circuit Judge having determined that the summons "was not signed as required by law" necessarily held the words "issued by the Clerk", appearing in Common Law Rule 5(b), included a requirement by law or by the Rule that the summons must be signed or authenticated by the Clerk in order to give it any force and effect.
The unsigned paper called a summons was void and it was error to amend the same by directing the Clerk to sign it after it had been served. The paper served, being void, was not subject to amendment. See 42 Am.Jur. p. 12, Sec. 10; Fisher, Sons Co. v. Crowley, 57 W. Va. 312, 50 S.E. 422, 4 Ann.Cas. 282.
The question of "seal" was not raised before the Circuit Judge nor in this Court by the pleadings, briefs or oral arguments of the parties. It is only discussed here because the signature or signing, is necessary for the adoption of a printed seal. There is nothing in the record to indicate that the Clerk of the Circuit Court impressed his seal upon the process or that he did anything to adopt as his seal the printed seal appearing upon the so-called process. It is a matter of common knowledge, of which this Court takes judicial notice, that blank forms, known as "summons at law-original" and "summons at law-copy" are printed in great quantities and may be purchased by any one from most of the printing establishments of the State.
It is quite true that even a printed note with the word "seal" printed thereon may be given effect as a sealed instrument when the signature is affixed indicating the adoption of the printed seal as the seal of the maker, but the printed word "seal" cannot be adopted by the maker as his seal without affixing his signature. Fourth Nat. Bank of Jacksonville v. Wilson, 88 Fla. 48, 101 So. 29; Langley v. Owens, 52 Fla. 302, 42 So. 457.
The case of Gilmer v. Bird, 15 Fla. 410, is not applicable in this case. In that case the requirement was that the style of all processes should be "The State of Florida." The Court held that the failure to include the words "The State of Florida" was nothing more than an irregularity and misprisionment and amendable. No question was raised that it was not signed. It has been repeatedly held by this Court that mere irregularity as to form or misprision may be amended. Such is not the case here where nothing is shown to have been done by the Clerk which gave the paper authenticity. It is true that the Legislature may prescribe the form of process and may change the same form time to time as it sees fit, but it cannot dispense with due process.
Section 47.04, F.S., F.S.A., went into detail as to what should be done by the Clerk in order to make the process valid. In 1951 Section 47.04, F.S. was repealed by Chapter 26962 and we were left only with the Common Law Rule 5(b). Under this Rule all of the details set forth in repealed Section 47.04 were eliminated and a substitute for the words "be signed by said clerk or judge" inserted in lieu thereof the words "summons shall be forthwith issued by the Clerk". (Emphasis supplied.) It is mandatory that the summons be issued by the Clerk. The delivery of a blank piece of paper, or printed form, to the plaintiff's attorney or to the sheriff, does not comply with the mandate that the summons shall be "issued" by the Clerk. Such a printed form with the names of the plaintiff and defendant inserted thereon, without anything appearing thereon to give it authenticity, is not a process.
This is not a case where there was some defect in the manner or method of service. Every step required by law may have been taken by the Sheriff in serving the unsigned paper. The defect in this case is that the so-called summons was not signed and there was nothing on it to give it authenticity, and it was, therefore, void.
Petition for writ of certiorari be and the same is hereby granted, and the orders of January 8, 1953, supplemented by the order of January 27, 1953, be and the same are hereby quashed.
ROBERTS, C.J., and TERRELL and SEBRING, JJ., concur.
THOMAS, HOBSON and DREW, JJ., dissent.
I am compelled to dissent from the majority opinion in this case because I do not believe that the summons which in truth and in fact was prepared in the Clerk's Office for delivery, and which actually was delivered to the Sheriff for service, was void. As pointed out by Mr. Justice Drew in his dissent, the law of Florida does not now mandatorily require that the Clerk sign the summons, only that the summons be issued by the Clerk. It is my view that unless it had been shown that the subject summons was not actually prepared in the Clerk's Office as an official act of the Clerk, or one of his deputies, it should not be declared absolutely void and it should be considered amendable.
The learned Circuit Judge was correct, in my judgment, in permitting the Clerk to amend the summons to speak the truth. It has been suggested that anybody could find a blank printed form of summons, fill it in and serve it, or have it served upon some one by a third party. If such had been the facts of this case I would agree that such summons was absolutely void. However, I cannot ignore the fact that the summons was actually and officially prepared by the Clerk or some one acting under his authority and was only deficient by virtue of the inadvertent failure of the Clerk to append his signature to it.
Section 47.04, Florida Statutes, which was repealed by Chapter 26962, Acts of 1951, provided:
"All process shall run in the name of the State of Florida, shall bear teste in the name of the clerk or judge issuing it, be signed by said clerk or judge, and bear date when issued; and, when not otherwise provided by law, shall be made returnable to the next ensuing rule day of the court from which it issued." (Emphasis supplied.)
The new Florida Common Law Rule relating to summons is as follows:
"Rule 5(b). Upon the commencement of the action, summons shall be forthwith issued by the Clerk and delivered for service without praecipe."
Prior to the adoption of the new Rules, process in the form of a summons alone marked the beginning of the litigation. There was no requirement for serving a copy of the complaint with the summons. For this reason alone, there was a firm basis for the statutory requirement that the Clerk sign the summons.
When the Legislature repealed Section 47.04, it expressly recognized in the repealing Act "the existing new common law rules", Rule 5(b) above being a part thereof. Under elemental principles of statutory construction this repealed the requirement that the summons be signed by the Clerk.
As I understand the record, the questioned summons was complete in all respects except that neither the Clerk nor his deputy actually signed the paper. The Court seal was impressed thereon, the names of Clerk and his deputy were either typed or printed thereon and the complaint was attached thereto and both were served by the Sheriff.
It is only in those jurisdictions where there is a mandatory requirement in the Statutes that the Clerk actually fix his signature to the document, where the failure to do so renders it void. For instance, in 42 Am.Jur. par. 10, page 12, it is said; in speaking of the conflict in the decisions in this matter:
"* * * The conflict on this point is due principally to different statutory requirements as to the necessity of signature in the various jurisdictions, the cases holding that a signature is necessary to the validity of a process or order arising, for the most part, in jurisdictions where the statutory requirement in that respect is mandatory * * * " (Emphasis supplied.)
Of interest, also, is the following from Par. 11 of 42 Am.Jur. page 12:
"Sec. 11. — Mode or Form; Necessity of Written Signature; Signing by Deputy. — The general rule is that the signature to a summons need not be in the handwriting of the person who is by law required to sign it; any signature, whether written, typewritten, stamped, printed, or lithographed, which the party issuing the summons may adopt as his own is considered to be a sufficient compliance with a requirement that such paper be signed. Even though the local statute or rule of practice requires that the summons be subscribed by the plaintiff or his attorney, it is not usually construed to require that it be subscribed in his own proper handwriting, but his name may be printed thereon. However, the general rule to the effect that a stamped, printed, or typewritten signature is a good signature appears to be subject to an exception where the signature is required by statute to be under the hand of the person making it.
"According to some decisions, process may be signed by a deputy clerk in his own name; others hold that a deputy must sign in the name of his principal. An attempted but ineffectual delegation of authority to sign a writ does not render the process invalid. A writ signed by a female deputy clerk, even though ineligible for such office, is voidable at most, and is not subject to collateral attack."
Petitioner argues that it was the "intention of the framers of the Florida Rules to adopt the Federal Rules for Florida Procedure," and that Federal Rule 4(b), 28 U.S.C.A., "apparently by oversight, was not lifted into Common Law Rule 5(b)." On this proposition we have no right to speculate, particularly when the language is so clear. In addition to that, the Supreme Court of the United States, in Bryan v. Ker, 222 U.S. 107, 32 S.Ct. 26, 27, 56 L.Ed. 114, in speaking on this general subject, said:
"True, the purported signature of the deputy was not his own, but was affixed by his brother under an attempted but ineffectual delegation of authority, and yet the writ, in the usual form, was issued from the office of the clerk, bearing the seal as evidence of its authenticity. In short, although thus irregularly issued, it came into the hands of the marshal as an apparently valid writ. Besides, this irregularity did not render the writ void, but voidable merely, for it could have been amended by substituting the true for the purported signature of the deputy. * * *"
As long ago as 1875, in the case of Gilmer v. Bird, 15 Fla. 410, Mr. Justice Westcott, in speaking for this Court on this general subject, said:
"It is contended that such summons as is authorized by the Code is process within the meaning of the constitutional provision, which requires the style of all process to be `The State of Florida;' that in this case the summons and (sic) no such style; that this was essential to the validity of the judgment, there having been no appearance, and that the order setting it aside as a void judgment was correct.
"Even if this summons was `process' within the meaning of the Constitution, the failure to insert the formal style required would only have been an irregularity, a misprision of the clerk, and amendable. The style of process is its title, and the title of process in civil cases has been a subject of amendment from a very early period in English history. That a formal requirement as to process is made by the Constitution is no more binding upon the court than if made by an act of the Legislature, and is equally the subject of amendment in one case as the other * * *".
While the Court in the above cases was speaking of a failure of the summons to have on it the style of process, viz. "The State of Florida", as required by the then Constitution, the reasoning is obviously applicable to the present discussion and, I think, is clear authority to uphold the lower court. I agree with the remarks of Mr. Justice Burr in James River Nat. Bank v. Haas, 73 N.D. 374, 15 N.W.2d 442, 445, 154 A.L.R. 1005 (text 1010) where, in discussing the character of a summons, said:
"Much of the confusion in this case arises over the character of a summons. A summons, under our code of procedure, is not a process in the old sense of being a writ issued by the court. The summons is just what it implies. It is a notice in statutory form required to be given to the defendant by a plaintiff so the former may know where to meet the plaintiff in order to be present and defend himself against the claim. We termed it process or in the nature of process. * * *
* * * * * *
"There is nothing sacrosanct about a summons. A summons is not essential in every case. The defendant may waive it if he desires. The legislature prescribes its form and lays down its requisites as in Sections 7422 and 7421. It may change the form and vary the requisites as it sees fit, with proper regard to due process of law."
Being convinced — as I am — that the lower court was entirely correct in the course of action he pursued and that he had authority to do what was done, I respectfully dissent from the main opinion.
THOMAS, J., concurs.