STAFFORD BLATCH, APPELLANT,
v.
MARION WESLEY, APPELLEE. FINANCIAL FIRE & CASUALTY COMPANY, GARNISHEE
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Stafford Blatch obtained a second judgment against Marion Wesley for $145,000 in damages after initially losing at trial, then sought garnishment against Wesley's alleged insurer. The trial court entered summary judgment for the garnishee, and the appellate court affirmed, holding that the second judgment was void because the prior judgment for the defendants had not been set aside pursuant to procedural rules.
The court affirmed the summary judgment for the garnishee, holding that the May 5, 1969 judgment was void because the prior November 15, 1967 judgment for the defendants had not been set aside pursuant to Rule 1.540, R.C.P., and therefore barred entry of a second judgment in the cause. A garnishee may raise the invalidity of the judgment underlying the garnishment as a defense.
[1] A party waives the right to object to the timeliness of a summary judgment hearing if the objection is not raised in the trial court.
[2] The time requirements for summary judgment hearings are not jurisdictional and may be waived by failure to object or move for a continuance.
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Join FLexlaw to unlock all legal intelligence“A garnishee may raise by way of defense the invalidity of the judgment which is the basis for garnishment after judgment.”
Establishes the legal principle that garnishees can challenge the underlying judgment's validity
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Join FLexlaw to unlock all legal intelligenceBlatch filed suit against defendants Wesley and G.M. Used Truck Sales, Inc. for personal injuries from an automobile collision. A jury trial in Novemb…
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The appellant was the plaintiff in an action for personal injuries resulting from an automobile collision. Two final judgments were entered in that cause. The first was entered November 15, 1967, after a jury trial. This judgment was for both of the two named defendants, one of whom was appellee Wesley, against the appellant. The second judgment, entered May 5, 1969, was for the appellant against appellee Wesley. It assessed appellant’s damages at $145,000.-00. The appellant brought a garnishment proceeding against an alleged insurer based upon the second judgment. The trial court entered a summary final judgment for the garnishee. This appeal is from that judgment. We affirm upon the law set forth in Shelby Mutual Insurance Company of Shelby Ohio v. Pearson, Fla., 236 So.2d 1, filed May 20, 1970.
There are no conflicts as to the following sequence of events:
June 30, 1966 — Complaint filed seeking judgment against defendants Marion Wesley and G. M. Used Truck Sales, Inc.
August 2, 1970 — Answer of defendant G. M. Used Truck Sales, Inc., filed.
November 15, 1967 — Final judgment entered for both defendants reciting jury verdict for the defendants.
September 5, 1968 — Filing of motion for default and trial date against defendant Marion Wesley for failure to file answer.
September 16, 1968 — Filing of order entering default judgment on the issue of liability in favor of plaintiff (Stafford Blatch) and against defendant Marion Wesley.
March 7, 1969 — Filing of order setting case for trial.
May 5, 1969 — Entry of final judgment in favor of plaintiff Blatch against defendant Marion Wesley.
June 4, 1969 — Filing of motion for garnishment after judgment.
November 19,1969 — Filing of motion by garnishee for summary final judgment.
December 5, 1969 — Hearing on motion.
December 11, 1969 — Entry of summary final judgment for garnishee-appellee.
The first point presented by the appellant urges that the judgment must be reversed because only 18 days elapsed from the service of the motion for summary judgment and the hearing on the motion. See Rule 1.510(c), R.C.P., 31 F.S.A.; Seven-Up Bottling Co. of Miami v. George Const. Corp., Fla.App. 1964, 166 So.2d 155. This point may not be considered because it was not raised in the trial court. Compare Worcester Mutual Fire Insurance Co. v. Eisenberg, Fla.App.1962, 147 So.2d 575. The time set by Rule 1.510(c), R.C.P., is not • jurisdictional. It may therefore be waived by a failure to object or move for a continuance. Cf. Bernard Marko & Associates, Inc. v. Steele, Fla.App.1970, 230 So.2d 42; Oppenheimer v. Morton Hotel Corporation, 324 F.2d 766 (6th Cir. 1963).
Appellant’s second point urges that the summary judgment was improper because there was a genuine issue as to the *310grounds for the garnishment in that the insurance policy which was the basis of the writ was not before the court. The existence of the policy and its terms may well be issues of fact, but they are not genuine issues of material fact because the judgment appealed from was entered upon the legal basis that the final judgment of May 5, 1969, was void.
The record before the trial judge upon the motion for summary judgment contained the valid judgment for the defendants rendered November 15, 1967. The record showed that no proceedings were taken pursuant to Rule 1.540, R.C.P., to set aside that judgment; it was therefore a bar to the entry of a second judgment in the cause. A garnishee may raise by way of defense the invalidity of the judgment which is the basis for garnishment after judgment. See cases cited at 6 Am.Jur.2d, Attachment and Garnishment, § 385.
Affirmed.
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Alls v. 7-Eleven Food Stores, Inc., 366 So. 2d 484 (Fla. 3d DCA 1979)…advantage of a defense which is common to all. Edwards v. Schilling, 14 Fla.Supp. 7 (Fla. 4th Cir. 1959); 47 Am.Jur.2d, Judgments, § 1160; 19 Fla.Jur., Judgments [*486] and Decrees, § 314 (1978 Supp.); Anno. 78 A.L.R. 938; Compare: Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA 1970). Second, it would be proper for a trial judge to enter a summary judgment for a defaulting defendant when it is apparent that the plaintiff can recover no damages against the defaulting defendant. Fields v. Quillian, 74 So. 2d 230…
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Bartlett Constr., Inc. v. Coastal Plains, Inc., 353 So. 2d 892 (Fla. 3d DCA 1977)…o object to the abbreviated time span and (3) implicit in every pre-trial conference is the possibility that summary judgment might be rendered, appellant’s contention must be rejected. Roberts v. Braynon, 90 So. 2d 623 (Fla.1956); Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA 1970), cert. den., 240 So. 2d 645 (Fla.1970); Raphael v. Koretzky, 102 So. 2d 746 (Fla. 3d DCA 1958). Appellant’s second contention must be likewise rejected in that, by virtue of the record placed before this court, there are no genui…
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The Ultimate Corp. v. CG Data Corp., 575 So. 2d 1338 (Fla. 3d DCA 1991)…rocedure require that there be twenty-five days’ notice. Fla.R.Civ.P. 1.510(c) and 1.090(e). The defendants waived any objection to the timeliness of the service by timely filing affidavits opposing the summary judgment motion. See Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA), cert. denied, 240 So. 2d 645 (Fla.1970); Bernard Marko & Assoc., Inc. v. Steele, 230 So. 2d 42 (Fla. 3d DCA 1970). It is thus evident that the timeliness of notice was adequate and the rule served its purpose; accordingly, any error i…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shelby Mut. Ins. Co. OF Shelby v. Tillman Pearson, 236 So. 2d 1 (Fla. 1970)
- Bernard Marko & Assocs., Inc. v. Morton Steele and Lester Segerman, 230 So. 2d 42 (Fla. 3d DCA 1970)
- Worcester Mut. Fire Ins. Co. & Sec. Mut. Liab. Ins. Co. v. Eisenberg, 147 So. 2d 575 (Fla. 3d DCA 1962)
- Oppenheimer v. Morton Hotel Corp., 324 F.2d 766 (6th Cir. 1963)
- Seven-Up Bottling Co. OF Miami, Inc. v. George Constr. Corp., 166 So. 2d 155 (Fla. 3d DCA 1964)
- Gentile v. Austin, 166 So. 2d 155 (Fla. 3d DCA 1964)