Opinion
No. 71-816.
October 19, 1971. Rehearing Denied November 30, 1971.
Appeal from the Civil Court of Record for Dade County, Edward S. Klein, J.
Abe Schonfeld, Miami, and Robert C. Hertz, for appellant.
Bruce Rogow, and Robert F. Williams, Miami, for appellee.
Before SWANN, C.J., and PEARSON and CHARLES CARROLL, JJ.
Plaintiff, Knight Manor # One, Inc., takes this interlocutory appeal from an order which quashed service of process upon defendant, J.A. Freeman.
Plaintiff sought possession of certain premises based upon the alleged non-payment of rental money due under an oral agreement between the parties. Service of process upon the defendant was attempted under § 83.22, Fla. Stat., F.S.A., which provides:
"If the defendant cannot be found in the county in which the action is pending and either he has no usual place of abode in the county or there is no person of his family above fifteen (15) years of age at his usual place of abode in the county, the sheriff shall serve the summons by attaching it to some part of the premises involved in the proceedings."
The deputy sheriff [process server] testified he went to the premises involved in the proceedings at 9:00 A.M., on June 22, 1971 to personally serve the defendant. He knocked upon the door and left after he received no response. He returned at 12:30 P.M. the same day. When he received no response the second time, he posted a copy of the complaint and summons on the door of the premises. He testified that he saw no one in the vicinity from whom he could inquire as to the whereabouts of the defendant. We note June 22, 1971 was a Tuesday.
We agree with the trial judge that these actions are insufficient to establish that the "defendant cannot be found in the county" in which the action was pending. See Broward Drainage District v. Certain Lands, 160 Fla. 120, 33 So.2d 716 (1948).
The order appealed is
Affirmed.