The petition for rehearing filed by appellee in this case attacks, as being incorrect, the statement in the Court's opinion to the effect that: "In the case at bar the petition for removal was timely filed, on a special appearance for that sole purpose."
Appellee contends that the above statement is incorrect because the special appearance appearing in the record shows that it was not filed for the sole purpose of removing the case to the Federal Court. The appearance filed is entitled "special appearance." The exact language is "Comes now H.C. Rorick" and others, "by Alec Baker and Mitchell D. Price and Charles W. Zaring, their attorneys, and file this their special appearance herein pursuant to Section 4279, C. G. L. 1927, and said parties also appear specially, for the purpose of removing this cause to the United States District Court, in and for the Southern District of Florida, Miami Division, not admitting the jurisdiction of the Circuit Court of the Twenty-second Judicial Circuit of Florida, in and for Broward County, but denying and disputing the same."
On the same day that this special appearance was filed, the petition for removal was also filed.
It is further stated that the Court overlooked the fact that there was no compliance whatever with said Section 4279, C. G. L., by appellants and that under the provision *Page 303 of said statute, such noncompliance constitutes a general appearance.
Section 4279 reads as follows:
"4279. Special appearance; operation as general appearance. — When any special appearance has been filed by a defendant in any cause in any of the courts of the State of Florida upon the proper return day in such cause, such special appearance shall operate as a general appearance, unless the defendant so filing such special appearance shall file a statement of the grounds of such special appearance and his motion to quash at the time of filing such special appearance or (on) not less than ten days before the next succeeding rule day. In event such statement of grounds and motion shall not be filed at the time of the filing of such special appearance, then such defendant shall deliver a copy of such statement and motion to the opposing party or his attorney not less than ten days before the next succeeding rule day. (Ch. 11971, Acts 1927, Sec. 1.)
In McCarthy's Annotation of the Florida Chancery Act, 2nd Ed., page 24, it is said:
"Chapter 11971, Acts of 1927 (Sec. 4279 C. G. L.) does not seem to be applicable to equity cases.
See Rorick v. Stilwell (supra) 16th headnote."
The case of Rorick v. Stilwell thus referred to is reported in 101 Fla. 4, 133 So. 609. In that case Mr. Justice DAVIS, speaking for the Court, said:
"But persons who are named as defendants in a suit in equity where process has been issued and returned as served upon them, when in truth and in fact no such service has in legal effect been made, although shown by the return, have the right to call such lack of jurisdiction to the attention of the Court by specially appearing in the cause and moving to set aside or vacate the service of process *Page 304 when it appears of record in the cause as a virtual basis for the Court to assure that it has lawfully obtained jurisdiction over the person of the defendant.
"And so long as the special appearance entered, and the motion filed pursuant thereto, whether filed personally or through counsel in that behalf, is confined solely to jurisdictional matters and asks nothing of the Court except that the Court determine for itself its own want of jurisdiction under the law, the special appearance entered and motion so filed must be regarded as limited in character and asper se conferring no jurisdiction on the Court to proceed to trial on the merits. In every case where it is claimed that service of process has been waived that fact ought to be clearly established and shown on the record. Anderson v. Agnew, 38 Fia. 30, 20 So. 766.
"If no legal service has in fact been had, and a special appearance designed to raise that objection, and limited to such object alone, is filed, it can not be considered a general appearance nor does it in and of itself confer any jurisdiction over the person of the defendant interposing it. See Read v. Rousch, 189 Iowa 695, 179 N.W. 84; Schlessinger v. Modern Samaritans, 121 Minn. 145, 140 N.W. 1027; Nye v. Arnow,13 Fla. 361.
"In this case we are dealing with a proceeding in equity, not at law. Our statute provides with reference to equity cases that in the absence of process of law or rules of practice in this State, the rules of practice in the courts of equity of the United States, as prescribed by the Supreme Court thereof, shall be the rules of practice of the Courts of the State when exercising equity jurisdiction, and when the rules of practice so directed by the Supreme Court do not apply, the "practice" of the Courts shall be regulated by the high Court of Chancery of England. Farnell v. Forest Investment Co., 74 So. 216,73 Fla. 191; Section 4919, *Page 305 Comp. Gen. Stats. 1927; Section 3132 R. G. S., Kahn v. Weinlander, 39 Fla. 210, 22 So. 653.
"In Florida there is no special statute or rule of Court prescribing any particular method for testing the sufficiency of the service of summons in Chancery, so the Federal practice is permissible.
"The rule in the Federal Court is that a motion to set aside the service, or a motion to quash the return, accompanied by a special appearance for that purpose is the proper method of testing the sufficiency of such service, unless the defendant prefers to disregard it and subsequently to raise the objection upon an appeal from the decree or to resist the execution of the decree as void. American Bell Telephone Co. v. Pan. Elec. Tel. Co., 28 Fed. 625; Romaine v. Union Ins. Co., 28 Fed. 625. And so is the English Chancery Rule which would apply if there were no Federal rule. 1 Daniels Chancery Practice, 8th Ed., 289."
It thus appears that the inclusion in the special appearance of the language "and file this their special appearance herein pursuant to Sec. 4279 C. G. L 1927" was inappropriate and ineffective surplusage in a special appearance to file petition for removal, and was considered by this Court as an inadvertent and redundant statement which did not detract from the language immediately following:
"And said parties also appear specially for the purpose of removing this cause to the United States District Court." etc.
It was not necessary for the appellants to appear for any purpose other than the removal of the cause to the United States District Court, at the time the special appearance for that purpose was filed. They did nothing more than this until after the remand of the cause.
Furthermore, after the special appearance for the purpose *Page 306 of removing the cause to the United States Court, an order of removal was made. The effect of this order stayed all proceedings in the State Court until after the cause was remanded. After such remand appellants did the in the court below their several special appearances and motions to quash service of summons and return of summons upon them, supporting their motions with affidavits, which appears to be the practice which was approved in the case of Rorick v. Stilwell,supra.
For these reasons a majority of the Court are of the opinion that the inclusion in the appellants' special appearance of the words: "and file this their special appearance therein pursuant to Sec. 4279 C. G. L. 1927" did not render such special appearance a general appearance. This is the only ground of the petition for rehearing which we think calls for any discussion.
The petition for rehearing is accordingly denied.
TERRELL, C. J., BUFORD, CHAPMAN and THOMAS, J. J., concur.
WHITFIELD, J., dissents.