Opinion
Nos. 75-1330, 75-1493.
February 18, 1977. Rehearing Denied April 13, 1977.
Appeal from the Circuit Court for Broward County, Arthur J. Franza, J.
Donald Dexter, for appellant.
Warren S. Schwartz, North Miami Beach, for appellees, Rosenthal, Seidler and Jacobs.
These are consolidated appeals from an order and final judgment entered by the court below. The order of June 23, 1975, denied Appellant's motion to quash constructive service of process by publication and entered a default against him. The final judgment of July 23, 1975, was one of foreclosure. Appellant appealed the entry of the order and the judgment. The appeals were consolidated.
Appellees have conceded in their brief and argument before this Court that the trial court erred in entering a default against Appellant without providing him the opportunity to plead responsively. This leaves us with the question of the correctness of the court's order denying Appellant's motion to quash service. This motion to quash was accompanied by Appellant's affidavit. An affidavit in support of constructive service was filed on behalf of Appellees. This affidavit strictly conforms to the requirements of Section 49.041, Florida Statutes. Hearing was held on the Appellant's motion to quash after due notice. The trial court's order reflects that Appellant did not appear in person or thru counsel. Its order further states that it heard live testimony of the litigants and counsel to ascertain whether due and diligent search and inquiry had been made to determine the last known residence of the Appellant. The trial court's findings and order reads:
1. That more than due and diligent search and inquiry was made to determine the last known residence of the said Donald Dexter and none could be found.
2. That the Crossclaiments would not have reason to know the last known residence of the said Donald Dexter.
3. That the motion to quash constructive service of process by publication is herein denied.
4. That a default be and is herein ordered as to the defendant, Donald Dexter.
This constitutes a finding of fact from evidence presented. Appellant was not present nor represented to present evidence in contradiction. We have reviewed the record and briefs. Appellant requested oral argument before this Court, but did not appear. The order of the trial court denying Appellant's motion to quash constructive service of process is affirmed. The portion of its order entering a default is reversed. The final judgment of foreclosure is vacated only as it applies to the Appellant, Donald Dexter. The cause is hereby remanded for further proceedings.
Affirmed in part and reversed in part.
CROSS, J., and MASON, ERNEST E., Associate Judge, concur.