SUN FINANCE CORP., A FLORIDA CORPORATION, PETITIONER,
v.
CHARLES FRIEND, AND JACK B. FRIED A/K/A JACK FRIEDENBERG, RESPONDENTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court reviewed a lower court's order that set aside a default judgment. The court found that attorney neglect alone does not constitute good cause to vacate a default judgment, and therefore quashed the lower court's order.
No, an attorney's inadvertent neglect, without more, does not constitute good cause to set aside a default judgment.
“A careful search of the record reveals that the only grounds alleged for vacation of the default judgment was that the petitioner's attorney inadvertently neglected to answer the complaint.”
Establishes the sole basis presented to the lower court for vacating the default judgment.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSun Finance Corp. obtained a default judgment against Charles Friend and Jack B. Fried. More than eight months later, the trial judge set aside this d…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Attorney Neglect cases and more on FLexlaw
Petitioner seeks review by certio-rari of an order setting aside a judgment in default which judgment was entered more than eight months prior to its vacation. A careful search of the record reveals that the only grounds alleged for *485vacation of the default judgment was that the petitioner’s attorney inadvertently neglected to answer the complaint. The law of this state with respect to setting aside default judgments is that a trial judge may only set aside such a judgment upon a showing of good cause. Barber v. North Shore Hospital, Inc., Fla.App.1961, 133 So.2d 339.
We said in White v. Spears, Fla. 1960, 123 So.2d 689, that, absent a showing of irregularity in the proceedings prior to the entry of default, the mere assertion that the default was caused by the attorney’s neglect and not through any fault on the defendant’s part, does not constitute good cause sufficient to justify the setting aside of the default judgment. Accordingly, the writ of certiorari is granted and the order setting aside the default judgment is quashed.
ON PETITION FOR REHEARING
The court granted limited rehearing, “for the purpose of further oral argument and consideration of the jurisdiction of the trial court to set aside a final judgment entered upon default, when the motion to set aside the final judgment and open the default is made more than eight months after the rendition of the final judgment.” We have reached the conclusion that since the repeal of former Florida Statutes 1953, § 50.10, F.S.A. there is no particular rule which limits the opening or setting aside of final judgment entered upon default. Ramagli Realty Co. v. Craver, Fla.1960, 121 So.2d 648. Therefore the trial court had jurisdiction up to a reasonable time to set aside the judgment and open the default for good cause shown. We find, and for the information of the Bar, include a reference to amendments and revisions of the Florida Rules of Civil Procedure to become effective July 1, 1962, and filed by the Supreme Court of Florida on March 21, 1962, amending rule 1.38, 30 F.S.A. and providing a period of one year during which the trial court may relieve a party from a final judgment for the reason of mistake, inadvertence, surprise or excusable neglect. It therefore appears that the holding that a trial court may only set aside final judgment within a reasonable time from the entry of such judgment, will have no application after July 1, 1962.
Having so found we nevertheless adhere to our opinion previously filed.
The holding therein that no good cause sufficient to justify the setting aside of the default judgment was made to appear supports granting of the writ.
PER CURIAM.
The court granted limited rehearing, “for the purpose of further oral argument and consideration of the jurisdiction of the trial court to set aside a final judgment entered upon default, when the motion to set aside the final judgment and open the default is made more than eight months after the rendition of the final judgment.” We have reached the conclusion that since the repeal of former Florida Statutes 1953, § 50.10, F.S.A. there is no particular rule which limits the opening or setting aside of final judgment entered upon default. Ramagli Realty Co. v. Craver, Fla.1960, 121 So. 2d 648.
Therefore the trial court had jurisdiction up to a reasonable time to set aside the judgment and open the default for good cause shown.
We find, and for the information of the Bar, include a reference to amendments and revisions of the Florida Rules of Civil Procedure to become effective July 1, 1962, and filed by the Supreme Court of Florida on March 21, 1962, amending rule 1.38, 30 F.S.A. and providing a period of one year during which the trial court may relieve a party from a final judgment for the reason of mistake, inadvertence, surprise or excusable neglect. It therefore appears that the holding that a trial court may only set aside final judgment within a reasonable time from the entry of such judgment, will have no application after July 1, 1962.
Having so found we nevertheless adhere to our opinion previously filed.
The holding therein that no good cause sufficient to justify the setting aside of the default judgment was made to appear supports granting of the writ.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978)…Inc. v. Wright, 342 So. 2d 503 (Fla.1977). Yet there are two areas where the courts have consistently upheld defaults and both are factors in this case. First, failure of the attorney to act with no good reason given, Sun Finance Corp. v. Friend, 139 So. 2d 484 (Fla. 3rd DCA 1962). Second, failure to immediately react upon learning of the default. In Re Aston, 245 So. 2d 674 (Fla. 4th DCA 1971). In this case the defendants below turned over the served complaint to a lawyer who inexplicably failed to do a…1 / 2
-
E & E Elec. Contractors, Inc. v. Myron Singer and Eleanor Singer, 236 So. 2d 195 (Fla. 3d DCA 1970)…ggan v. Edson, Fla.1966, 186 So. 2d 13; Houston Texas Gas and Oil Corp. v. Hoeffner, Fla.App.1961, 132 So. 2d 38. This court has been confronted with fact situations nearly identical to the case at bar. In Sun Finance Corp. v. Friend, Fla.App.1962, 139 So. 2d 484, we concluded that it was an abuse of discretion for the trial court to have set aside a default judgment, such setting aside having been based solely upon a motion and affidavit setting forth mistake and/or neglect of counsel. See also, White v. Sp…
-
Martine Lacore v. Giralda Bake Shop, Inc., 407 So. 2d 275 (Fla. 3d DCA 1981)…ding excusable neglect under Florida Rules of Civil Procedure 1.540(b)(1). Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978); Bailey v. Deebold, 351 So. 2d 355 (Fla.2d DCA 1977); Sun Finance Corp. v. Friend, 139 So. 2d 484 (Fla.3d DCA 1962). The lack of excusable neglect is not fatal to appellant’s quest for relief. Appellant also claims relief from the judgment of default under Florida Rules of Civil Procedure 1.540(b)(3).1 By affidavit, appellant claims appellee ha…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ramagli Realty Co. v. Craver, 121 So. 2d 648 (Fla. 1960)
- Angell M. White and Anna White v. Spears, 123 So. 2d 689 (Fla. 3d DCA 1960)
- Barber v. N. Shore Hosp., Inc., 133 So. 2d 339 (Fla. 3d DCA 1961)