Red Top Cab & Baggage Co. v. Holt ( 1944 )

On petition for a writ of mandamus we review an order of the Circuit Court of Dade County quashing service of process pursuant to Sec. 47.30, F.S. '41, F.S.A.

Process was sought to answer an action for damages by reason of the negligent operation of an automobile. The declaration alleged that defendant was a resident of the State of Michigan. The Circuit Court quashed the attempted service because the declaration did not allege that the defendant was a nonresident at the time of the collision.

It is necessary, therefore, for us to determine whether the plaintiff must allege the nonresidence of defendant at the time of the accrual of the cause of action in order to procure service of process under this statute.

The statute rests upon the principle of agency and the relationship exists only where defendant is a nonresident. It is, therefore, indispensable that the record show the nonresident status at the time the cause of action accrues.

The petition for mandamus is denied.

BUFORD, C. J., TERRELL, BROWN, THOMAS and SEBRING, JJ., concur.

CHAPMAN, J., dissents.