FRANKLIN CRAVER, APPELLANT,
v.
RAMAGLI REALTY CO., A FLORIDA CORPORATION, APPELLEE
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Franklin Craver sued Ramagli Realty Co., and after defendant's motion to dismiss a second amended complaint was denied, the trial court entered a default judgment against defendant for failure to plead within ten days. The appellate court reversed, holding that defendant's answer to the first amended complaint was sufficient to prevent default on the second amended complaint.
The court held that the default was improperly entered because defendant's answer to the first amended complaint was sufficient to prevent default on the second amended complaint. An answer to an original complaint may stand over to an amended complaint, particularly where the amended complaint merely rewords the same claim, and the trial court erred in failing to consider the filed answer when entering the default.
“It is well established that the object of the Florida Rules of Civil Procedure is to secure the just, speedy and inexpensive determination of every action.”
Establishes the foundational purpose of civil procedure rules that guides the court's analysis
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Join FLexlaw to unlock all legal intelligenceDefendant Ramagli Realty Co. filed an answer to the first amended complaint on April 17, 1957. The plaintiff then filed a second amended complaint on …
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The defendant appeals a final judgment entered pursuant to a default for failure to plead to a second amended complaint. The controlling question is whether the default was lawfully entered. We find that the default was improperly entered and the cause is remanded for further proceedings.
A skeletal chronology of the pleadings is necessary: (1) 1st amended complaint 3/26/57, (2) answer 4/17/57, (3) 2nd amended complaint 4/26/57, (4) motion to dismiss 2nd amended complaint 5/21/57, (5) order denying motion to dismiss 6/7/57, (6) plaintiff’s motion for entry of default 6/19/57, (7) order entering default 6/20/57, (8) final judgment. Following the final judgment the trial court upon motion set aside the default and judgment, but later vacated this latter order.
It is well established that the object of the Florida Rules of Civil Procedure is to secure the just, speedy and inexpensive determination of every action. See Rule A, Scope and Title of Rules, 1954 Rules of Civil Procedure, 30 F.S.A. To that end the trial judge may enter a default where authorized. See Rule 2.9(a) 1954 Rules of Civil Procedure, 31 F.S.A.; Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9; Pan Am. World Airways, Inc. v. Gregory, Fla.App.1957, 96 So.2d 669. The trial judge may also set aside the default and such act rests in the sound discretion of the court. Coggin v. Barfield, supra; Perrin v. Enos, Fla.1951, 56 So.2d 920. It readily appears that the basis for the entry *189of the default against the defendant in this case was his failure to plead to the second amended complaint within 10 days after his motion to dismiss was denied as required by Rule 1.11(a), 1954 Rules of Civil Procedure, 30 F.S.A.
The trial judge failed to take into account defendant’s answer which was on file at the time of the entry of the default. This answer was filed in response to the 1st amended complaint and it will be noted that the 2nd amended complaint was voluntarily filed after answer to the 1st amended complaint. (After the filing of the 2nd amended complaint, an order was secured from the court accepting it as filed and granting 20 days in which to answer). The 2nd amended complaint reworded the claim and added a second count “for money had and received”. Under these circumstances the denial in the filed answer of the factual basis set forth in the 1st amended complaint was responsive to the same claim as reworded. Therefore the answer was sufficient to prevent a default for failure to answer.
The rule that an answer may stand over to an amended complaint was recognized in Florida before the present rules were adopted. Butler v. Thompson, 2 Fla. 9; Jordan v. John Ryan Co., 35 Fla. 259, 17 So. 73, 75. This rule is generally recognized. See cases collected at: 41 Am.Jur., Pleading § 312; 71 C.J.S. Pleading § 314 c. It appears to be in keeping with the spirit and purpose of the 1954 Rules of Civil Procedure, and we find nothing in said rules which changes it.
We therefore hold that the default was improperly entered on the 13th day after the denial of defendant’s motion to dismiss. The judgment is reversed and the cause remanded for further proceedings.
Reversed.
CARROLL, CHAS., C. J., and HORTON, J., concur.
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Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967)…to the alleged cause of action as the original complaint, the original answer should have been permitted to stand over. See: Rule 1.15(a), Florida Rules of Civil Procedure, 1965 Rev., 30 F.S.A. See also: Craver v. Ramagli Realty Co., Fla.App. 1959, 109 So. 2d 187, Reversed on other grounds, Fla., 121 So. 2d 64S. At the time the cause came on for trial, both counsel for the plaintiffs and the defendant announced they were ready to proceed. The trial court indicated that the matter would not be reached on the…
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Nichols v. McGRAW, 152 So. 2d 486 (Fla. 1st DCA 1963)…egiate Dictionary as “Supreme Authority” and as a synonym to “power”. . McAllister v. Miami Daily News, 154 Fla. 370, 17 So. 2d 613 (1944). . Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So. 2d 773 (1946). . Lambert v. Johnson, 109 So. 2d 187 (Fla.App.1st, 1959). . Wolfe v. City of Miami, 103 Fla. 774, 134 So. 539, 137 So. 892 (1931). . Reese v. Reamore, 292 N.Y. 292, 55 N.E. 2d 35 (1944). . Eggerding v. Bicknell, 20 N.J. 106, 118 A. 2d 820 (1955).…1 / 3
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Scarfone v. Denby, 156 So. 2d 694 (Fla. 2d DCA 1963)…ffs’ amended complaint, and that, therefore, the defendants were in default — ■ both under the Rules and under the specific order of the court entered in this cause, we have not overlooked the decision' in Craver v. Ramagli Realty Co., Fla.App.1959, 109 So. 2d 187, wherein our sister court in the Third District arrived at a conclusion essentially contrary to ours. Irrespective of the fact that that decision was vacated by [*698] the Supreme Court with directions to enter an order dismissing the appeal solely…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coggin v. Barfield, 150 Fla. 551 (Fla. 1942)
- PAN Am. World Airways, Inc. v. Gregory, 96 So. 2d 669 (Fla. 3d DCA 1957)
- Etienne v. Irvin, 45 Fla. L. Weekly D2032 (Fla. 3d DCA 2020)
- Perrin v. Enos, 56 So.2d 920 (Fla. 1951)
- Jordan v. John Ryan Co., 35 Fla. 259 (Fla. 1895)
- Butler v. Thompson & Hagner, 2 Fla. 9 (Fla. 1848)