LAKE TOWERS, INC., A FLORIDA CORPORATION, PETITIONER-APPELLANT,
v.
PAUL AXELROD ET AL., RESPONDENTS-APPELLEES
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The court held that a party may plead at any time before a default judgment is entered, even if responsive pleadings were filed after the due date but before the default.
Defendant mailed responsive pleadings on the due date, which were received and filed a few days later. Plaintiff moved for default judgment, which was…
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Defendant, Lake Towers, Inc., seeks review of an order striking its responsive pleadings and entering a default judgment against it. We treat the application as. a petition for writ of certiorari.
Plaintiff Axelrod filed his complaint and lis pendens on October 16, 1967. On November 8, 1967, the date a response was due, defendant mailed motions to dismiss, to strike and to dismiss lis pendens. These were received by plaintiff postmarked November 9, 1967. All three motions were filed November 13, 1967.
Two days later plaintiff moved to strike defendant’s pleadings and for entry of a default judgment alleging that the responses were untimely. Some two months later a default was entered against defendant because,
“the pleadings were not served within 20 days, as required by the Rules of Civil Procedure.”
We believe the entry of this default was erroneous.
While we believe these responsive pleadings were timely served under the rule which makes service complete upon mailing, Rule 1.080(b), F.R.C.P., 30 F.S.A., we find it unnecessary to decide this point. Instead, we base our decision squarely upon the right of a pleader to respond at any time prior to entry of a default judgment.
Rule 1.500(c), F.R.C.P., 31 F.S.A., provides :
“(c) Right to Plead. A party may plead or otherwise defend at any time before default is entered.”
Since defendant’s responsive pleadings were served two months prior to entry of the default, we must grant the petition for certiorari and remand with instructions to reinstate the stricken pleadings.
Defendant has raised several other questions. We expressly do not decide the sufficiency of the complaint or of the lis pen-dens, or any of the other matters raised by defendant, since such issues are not necessary to the disposition of this matter.
It is so ordered.
REED and OWEN, JJ., concur.
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Carillon Corp. v. Seymour Devick and Florence Devick, 554 So. 2d 630 (Fla. 4th DCA 1989)…nsive pleadings were served two months prior to the entry of the default, even though not within the twenty days after service as required by the rules of civil procedure, rule 1.500(c) precluded the entry of a default. Lake Towers, Inc. v. Axelrod, 216 So. 2d 86 (Fla. 4th DCA 1968). In the instant case, the order of the trial court required the appellant to secure counsel within fifteen days. Although this was not accomplished, a notice of appearance of counsel for appellant was filed prior to the entry of…
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Edward L. Nezelek, Inc. v. G. E. Drywall, Inc., 352 So. 2d 76 (Fla. 4th DCA 1977)…ve parties, we determine that the order of the trial court in declining to vacate and set aside the default judgment constituted an abuse of judicial discretion. Goldstein v. Goldstein, 284 So. 2d 225 (Fla.3d DCA 1973); Lake Towers, Inc. v. Axelrod, 216 So. 2d 86 (Fla. 4th DCA 1968); Hurley v. Werly, 203 So. 2d 530 (Fla. 2d DCA 1967); State Road Department v. Hufford, 161 So. 2d 35 (Fla. 1st DCA 1964). Accordingly, the order is vacated and set aside, and the cause remanded for further proceedings. Reversed…
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Bd. OF Regents v. Schuyler Hardin & Transamerica Ins. Co., 393 So. 2d 1134 (Fla. 1st DCA 1981)…anguage of Rule 1.500(c), Florida Rules of Civil Procedure, is plain and has been read literally by the courts. See: Freedman v. Freedman, 235 So. 2d 544 (Fla. 3rd DCA 1970), cert. denied, 241 So. 2d 859 (Fla.1970), and Lake Towers, Inc. v. Axelrod, 216 So. 2d 86 (Fla. 4th DCA 1968). The Rule states that a party may plead or otherwise defend at any time before default is entered. An order of default has not been entered until it is actually filed with the clerk. Chester, Blackburn, and Roder, Inc. v. Marches…
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