Opinion
June 13, 1952.
Appeal from the Circuit Court for Dade County, Vincent C. Giblin, J.
Joseph Pardo, Miami, and Pepper, Lefevre, Orr Faircloth, Tallahassee, for appellant.
Loftin, Anderson, Scott, McCarthy Preston, Robert H. Anderson and D.P.S. Paul, Miami, for appellees.
Appellees as plaintiffs filed their bill of complaint in the Circuit Court of Dade County to enjoin alleged acts of violence on the part of defendants-appellants. Ancillary to the bill there was an application for temporary injunction. Service was made on defendants by the sheriff of Hillsborough County in response to which they entered a special appearance for the purpose of attacking the legal sufficiency of the service. A motion to dismiss was made and argued but taken under advisement and defendants were ordered to plead to the bill of complaint at a time certain. In response to this order petitioner filed suggestion for prohibition in this Court directed to the Circuit Court of Dade County praying that it be enjoined from exercising further jurisdiction in the cause. The Circuit court of Dade County then entered an order upholding the service and the petitioner appealed.
The sole point for determination is whether or not the service on appellant, an unincorporated labor organization, was valid. The return shows on its face that it was made on a foreign corporation. It does not show the absence from the State of the officers or agents named in Section 47.17, F.S.A., upon whom service must be made, nor does it show service upon an agent "transacting business" for appellant in this State.
Appellant contends that the service did not meet the requirements of Section 47.17, F.S.A. All the cases cited by it had to do with this statute. Appellant being an unincorporated labor organization, service on it is governed by Section 447.11, F.S.A., while Section 47.17, F.S.A., governs service of process on corporations. The return shows service on "International Typographical Union, a labor organization" by delivery of a true copy of the process "to Elmer Brown, Representative business agent, manager and person in charge of the business of such labor organization." This is the language of the statute and it was not necessary to negative the absence of other officers of appellant from the state as is required for serving corporations under Section 47.17, F.S.A. See also International Typographical Union v. Circuit Court of Dade County, et al., prohibition denied by this Court May 8, 1951, involving similar question.
No opinion.
Even if the Sheriff's return had been defective that alone would not destroy the validity of the return. 31 F.S.A. Rule 5(b), Florida Equity Rules, provides that failure to make proof of service as required by law shall not affect the validity of the service. In addition to Rule 5(b), Section 47.47, Florida Statutes 1949, F.S.A., permits freedom of amendment so most any defect in recitals on a sheriff's return may be cured. The very purpose of the New Rules was to obviate such errors as that enjoined in this case. Aside from the rule and the statute there is no evidence in this case to impeach the sheriff's return as required by decisions of this Court. Cherry Lake Farms Inc. v. Love, 129 Fla. 469, 176 So. 486; Golden Gate Development Co. v. Ritchie, 140 Fla. 103, 191 So. 202.
For the reasons so stated the decree appealed from must be and is hereby affirmed.
Affirmed.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.