State Ex Rel. Palmer v. Gray

Strum, J. This is a case of original jurisdiction. The cause conies before us upon a petition for writ of mandamus disclosing the following circumstances: The relator, Ruby TI. Palmer, as plaintiff, instituted an action at law in the circuit court of Duval County against “John H. Swisher and Carl S. Swisher, non residents of the State of Florida and co-partners trading and doing business in the State of Florida under the firm name of John H. Swisher & Son,” the object of the action being to recover damages because of the killing of G-. B. Palmer, plaintiff’s husband, through the carelessness and negligence of “the said defendants.” The petition further alleges that summons issued out of said circuit court in said action, directed to all and singular the sheriffs of the State of Florida, commanding them to summon “the said John H. Swisher and Carl S. Swisher, non-residents of the Stale, of Florida and co-partners trading and doing business in the State of Florida under the firm name of Jno. PI. Swisher & Son.” The return upon said summons discloses that it was executed in Duval County, Florida, “by delivering a true copy thereof to V. E. Smallwood, a business agent and accredited representative of the within named defendant co-partnership, John H. Swisher and Carl S. Swisher, nonresidents of the State of Florida and co-partners trading and doing business in the State of Florida, under the firm *1125 name of John H. Swisher and Son, and at the same time showing this original and explaining the contents thereof, it appearing that personal service cannot be made upon either of the above named individual co-partners in accordance with statutes now ‘of’ force in the State of Florida.” The defendants appeared specially and moved to quash the return, upon the grounds, amongst others, that "the said V. E. Smallwood, as described in said return, was not a person upon whom the service of process could bind these defendants”; and that Section 2602, Rev. Gen. Stat. 1920, "under which the said pretended service was sought to be made” is violative of designated sections of the Federal Constitution. The motion to quash was granted. Thereupon, the plaintiff in that action, as relator, applied here for a writ of mandamus to require the Honorable DeWitt T. Gray, as Circuit Judge of the Fourth Judicial Circuit of Florida in and for Duval County, and who made the order quashing the return aforesaid, to hear and determine the action so brought by relator, as plaintiff, in said circuit court; to strike from the record the order of said judge whereby the service of said writ of summons was quashed; and thereupon to make such disposition of the action as ought to have been made had the said order not been entered. See State ex rel. Crump v. Branning, 74 Fla. 522; 77 Sou. Rep. 228; State ex rel. Hopps v. Horne, 75 Fla. 149; 77 Sou. Rep. 672; State ex rel. Claar v. Branning, 85 Fla. 61; 95 Sou. Rep. 237. The relator contends that the return shows a valid service of process under Sec. 2602, Rev. Gen. State 1920, which is as follows: "2602. SERVICE ON AGENT OF FIRM OR CO-PARTNERSHIP; PROVISO. — That in all cases where any firm or copartnership shall conduct or carry on a business, or business venture, in the State of Florida, or shall *1126 have an office or agency in the State of Florida, service of process may be made upon any business agent or accredited representative of said firm or co-partnership, and such service shall be binding upon the said copartnership and the individual members thereof. Provided, That in all cases it shall appear that personal service cannot be made upon such individual co-partners, or either of them, in accordance with the statutes now of force in this State; and, provided further, That this Section shall apply only to firms and co-partnerships composed wholly of persons not resident in this State.” Mandamus is an extraordinary remedy. It is axiomatic that the writ will not be allowed in cases of doubtful right, but it must appear, amongst other things, as a prerequisite to the issuance of the writ, that the relator has a clear, legal right to the performance by the respondent of the particular duty in question. Myers v. State ex rel. Thompson, 81 Fla. 32; 87 Sou. Rep. 80; State ex rel. Ellis v. Atlantic Coast Line R. R. Co., 53 Fla. 650; 44 Sou. Rep. 213; 13 L. R. A. (N. S.) 320; 12 Ann. Cas. 359; State v. Geer, 88 Fla. 249; 102 Sou. Rep. 739; 37 A. L. R. 1298. The method of serving process authorized by Sec. 2602, supra, is in the nature of substituted service. 32 Cyc. 461. Statutes authorizing service of that character are strictly construed. Gage v. Riverside Trust Co., 156 Fed. 1002. In order to render such service of process effective, the plaintiff must bring himself clearly within the provisions of the statute authorizing it. See Barwick v. Rouse, 53 Fla. 643; 43 Sou. Rep. 753; and Kibbe v. Benson, 84 U. S. (17 Wall.) 624; 21 L. Ed. 741, which are illustrative of that proposition in respect to the manner of service. See also 21 R. C. L. 1279 (23). Section 2602, supra, applies exclusively to a limited and *1127 designated class of firms and co-partnerships, namely, ‘ ‘ only to firms and copartnerships composed wholly of persons not resident in this State.” The provisions of the statute are therefore not available where non-resident members of a co-partnership are sued solely as individuals, as, for example, for a joint tort or for a joint contract obligation unconnected with the partnership business. It is essential that the action be clearly against the defendants as co-partners, otherwise the statute is not applicable. In the action brought by relator as plaintiff in the circuit court, the defendants are styled in the summons: “John H. Swisher and Carl S. Swisher, non-residents of the State of Florida and copartners trading and doing business in the State of Florida, under the firm name of Jno. H. Swisher & Son.” Where defendants are so described or styled, the authorities are practically unanimous that the action is against the named defendants as individuals and not as copartners. The omission of the word “as,” following the names of the defendants and preceeding the phrase “copartners trading and doing business in the State of Florida under the firm name of Jno. H. Swisher & Son,” renders the latter phrase merely descriptio personae and the action one against the named persons as joint defendants, but not necessarily as copartners. Liability as a copartner is only one species of joint liability. Thus it appears that while the defendants are described or referred to as being copartners, it does not plainly appear that the action is brought against them solely as copartners, as distinguished from individual joint tort feasors or joint obligors. Billings v. Finn, 202 Pac. Rep. 938; Good v. Red River Valley Co., 78 Pac. Rep. 46; Bastian v. Adams, 91 N. W. 231; Compton v. Smith (Ala.) 25 Sou. Rep. 300; Peaks v. Graves, 41 N. W. Rep. 151; Johnston, Nesbitt & Co. v. First Natl. Bank, (Ala.) 40 Sou. Rep. 78; Burks v. *1128 Unique Printing Co., 88 N. W. Rep. 488; United Press v. A. S. Avell Co., 76 N. Y. S. 692; Nolin v. Mooty, 113 S. E. Rep. 814; Saxe v. Dooely, 7 Porto Rico Fed. 623; 30 Cyc. 565; 15 Encyc. Plead. & Prac. 850. The authorities tend to recognize a qualification of the rule last stated, which qualification is to the effect that all the pleadings in a cause may be considered together to ascertain the true nature of the action, and that the character of the action, whether it be against the defendant individually, or against him as a copartner or in some representative capacity, — will be determined from a consideration of the whole record. See Bank v. Shuler, 47 N. E. Rep. 262; 60 Am. St. Rep. 601; United Press v. Abell Co., 76 N. Y. S. 692. But the “whole record” of the action in the circuit court now before us consists of the summons and return thereof, in each of which the defendants are described as above stated, — and defendant’s motion to quash, which does not aid the matter. It is therefore unnecessary for us to either sanction or reject the qualification just mentioned. Even if the omission of the word “as” in styling the defendants might be remedied by confining the proof at the trial to facts disclosing partnership liabiliity (see Marx Bros. v. Culpepper, 40 Fla. 322; 24 Sou. Rep. 59), or by limiting the recovery and judgment, if any, to one against the defendants as copartners, — thus in effect resolving the cause into an action solely against the defendants as copartners, — whether or not that be the relator plaintiff’s intention in bringing the action, or would be the course taken at the trial, is wholly conjectural in the present state of the record before us. Those possibilities can not be resorted to, in anticipation, for the purpose of aiding or construing the summons and return in this pro *1129 ceeding. The relators ’ right to the writ of mandamus must be tested by the record as now presented to us. Since the action in the circuit court, in its present form, must be construed to be against the defendants as joint defendants only, and not as copartners, the cause is not within the purview of the statute under which service of process was attempted. It therefore follows that the attempted service of the summons upon the said Y. E. Small-wood was ineffectual to give the circuit court jurisdiction of the defendants either individually or as copartners, and the motion to quash the return was properly granted. In this view of the matter, it is unnecessary for us to consider the constitutionality of Section 2602, supra. The alternative writ is denied. Whitfield, Terrell and Brown, J. J., concur.