CopyCited 6 times | Published | Supreme Court of Florida
...[1] *570 Appellants/landlords filed a distress for rent claim under Section
83.11, Florida Statutes (1975), along with an affidavit in support of the claim. They posted a distress bond for twice the value of the property sought to be levied upon. In accordance with Sections
83.12 and
83.13, Florida Statutes, a deputy clerk of Orange County, Florida, issued a distress writ without a judicial order....
...itution. In light of recent judicial treatment regarding prejudgment procedures, we find that the circuit court was correct in ruling that Sections
83.11,
83.12, and
83.14-.19, Florida Statutes, failed to pass constitutional muster. However, we find Section
83.13 constitutional on its face though unconstitutional as applied in the court below....
...Due process requires that interested parties by apprised of the pendency of an action through a procedure reasonably calculated to convey the required information. Mullane v. Central *573 Hanover Bank & Trust Co.,
339 U.S. 306,
70 S.Ct. 652,
94 L.Ed. 865 (1947). Section
83.13, Florida Statutes, [5] provides for service by posting "if the defendant cannot be found." In the instant case, the county court approved constructive service by levy upon the property even though the defendant "[could have been] found" within the state of Florida to effect personal service of the writ. Appellee maintains that the phrase "if the defendant cannot be found" refers to found within the county where the property is located. It then concludes that the procedure embodied in Section
83.13, Florida Statutes, is unconstitutional vel non because it condones constructive service where the defendant may be within the state of Florida and susceptible to personal service....
...In the case sub judice, appellee is a Florida corporation with a resident agent. Appellants knew the location of appellee's business but failed to have it served. Due process clearly dictated personal service upon the appellee. Assuming the defendant cannot be found within the state of Florida, Section 83.13, Florida Statutes, states that "the levy on the property suffices as service on him." [6] In Grisson v....
...As service by posting is merely an alternative to serve by publication, the necessity of filing an affidavit is still viable. Were the service of process deficiency described above the only impediment in our distress statute, the construction we have placed on Section 83.13, Florida Statutes, would save the statute....
...[9] For the reasons stated herein, the judgment of the circuit court declaring Sections
83.11,
83.12 and
83.14-.19, Florida Statutes, unconstitutional is affirmed. We find no constitutional violation in Sections
83.08-.09, Florida Statutes, which merely create a lien, and we find Section
83.13 as herein construed unconstitutional only as applied to the appellee in this case....
...in at least double the sum demanded, or if property, in double the value of the property sought to be levied on, conditioned to pay all costs and damages which defendant sustains in consequence of plaintiff's improperly suing out the distress." [4] § 83.13, Fla....
CopyCited 3 times | Published | District Court, S.D. Florida | 1973 U.S. Dist. LEXIS 15163
...issue a distress writ. The Plaintiff's personal property was then seized pursuant to the Writ of Distress served by the Defendant, Sheriff of Dade County. The issue in this cause is whether the Florida Distress Statutes,
83.08,
83.09,
83.11,
83.12,
83.13,
83.14,
83.15,
83.18 and
83.19, are unconstitutional in that they permit and authorize the taking of property without due process of law....
...The landlord must file a bond with surety payable to the Defendant in at least double the sum of money demanded. (F.S.83.12). The Sheriff must execute the writ of distress upon the tenant and levy on property distrainable for such rent. The levy upon the property shall suffice as the service upon the tenant. (F.S. 83.13)....
