Opinion
No. 33205.
October 28, 1964.
Petition for review from the District Court of Appeal.
Fred C. Davant of Wicker, Smith, Blomqvist, Hinckley Davant, Miami, for petitioner.
Highsmith Ezzo, Miami, for respondent.
Petitioner, defendant in the Circuit Court, seeks review by certiorari of a decision of the District Court of Appeal, Third District, affirming, without opinion, an order of the Circuit Court denying petitioner's motion to dismiss for lack of jurisdiction. See Young Spring Wire Corporation v. Smith, Fla.App. 1963, 159 So.2d 120. Petitioner asserts that a direct conflict exists between the instant case and Fawcett Publications, Inc., v. Brown, Fla.App. 1962, 146 So.2d 899.
Probable jurisdiction having been made to appear on the theory of "direct conflict," the cause was set down for oral argument on the question of jurisdiction and on the merits, and is now before this Court for decision in the light of such argument and the briefs of the parties.
Necessarily, we must first address ourselves to the question of our jurisdiction under Article V of the Constitution of Florida F.S.A. to review the cause. Inasmuch as the District Court of Appeal affirmed without an opinion the decision of the Circuit Court, we are without the benefit of a majority opinion of the District Court of Appeal, which renders our task and duty of determining the question of jurisdiction more difficult. Because the District Court of Appeal did not express an opinion, we examined the record proper, which reveals questions of significant import in regard to substituted service of a foreign corporation and the manner in which such service can properly be effected under our laws. Our final decision in this cause would be greatly facilitated by an expression of the District Court of Appeal of the theory and reasoning upon which its judgment is bottomed and a request thereto by this Court is not unreasonable or improper. See Home Development Company of St. Petersburg, Inc. et al. v. Bursani et al., Fla., 168 So.2d 131, opinion filed October 2, 1964. Cf. State v. Bruno, Fla., 104 So.2d 588, and Rosenthal v. Scott, Fla., 131 So.2d 480.
Accordingly, request is respectfully made to the District Court of Appeal, Third District, that it reconsider the cause and render an opinion setting forth the basis and reasoning upon which its decision in the cause is reached; and jurisdiction is relinquished to that court, temporarily, for such purpose, upon completion of which this Court will proceed to determine whether the cause should be reviewed here under Article V, Constitution of Florida.
It is so ordered.
DREW, C.J., and ROBERTS, O'CONNELL, CALDWELL and ERVIN, JJ., concur.
THOMAS and THORNAL, JJ., dissent.