Pascul v. Davis
Pascul v. Davis
Opinion of the Court
By this appeal, the appellant seeks review of an adverse order of the trial court refusing to dissolve a temporary injunction and dismissing a complaint in chancery.
The appellee, plaintiff in the trial court, filed a complaint seeking to enjoin the defendant [an alleged resident of Dade County] from violating a non-competitive agreement in a contract of employment. A temporary injunction was issued upon a sworn complaint. A special appearance was filed, together with the motion to dismiss the complaint and injunction for lack of jurisdiction over the person of the defendant. It was conceded that no service of process was had upon the defendant in any form, actual or constructive. Upon hearing the motion upon special appearance, the chancellor overruled same and this appeal ensued.
We affirm so much of the chancellor’s order as overruled the motion to dismiss the complaint. But, we reverse the failure to dissolve the temporary injunction because of lack of process upon the defendant. Undoubtedly, the chancellor has the power to issue a temporary injunction prior to service of process upon a defendant. See: Thebaut v. Canova, 11 Fla. 143; Smith v. Housing Authority of Daytona Beach, 148 Fla. 195, 3 So.2d 880; 28 Am.Jur., Injunctions, § 246. However, it is incumbent upon the plaintiff to cause service to be made upon the defendant within a reasonable time after the institution of the suit if the temporary injunction is to stand. See: 43 C.J.S. Injunctions § 242. Of course, the mere fact that the temporary injunction is dissolved [because of the failure to secure service of process upon the defendant] will not remove the defendant from the effect thereof in the event a permanent injunction should be entered after service of process and subsequent to final hearing. See: Bowling v. National Convoy & Trucking Co., 101 Fla. 634, 135 So. 541; Peters v. Southern Bell Tel. & Tel. Co., Fla.1954, 70 So.2d 547; Pearce v. Pearce, Fla.App.1957, 97 So.2d 329; 17 Fla.Jur., Injunctions, § 6.
Therefore, the order here under review is affirmed in part and reversed in part, in accordance with the views expressed above.
Affirmed in part; reversed in part.
Concurring Opinion
(concurring specially).
I concur in the decision and the holdings which affirm the order denying the motion to dismiss the complaint and reverse the order denying the motion to dissolve. I cannot agree that the defendant will be bound by the terms of the temporary injunction in the event a permanent injunction is subsequently entered.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.