MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., APPELLANT,
v.
PUBLISHER'S VENDING SERVICES, INC., A/K/A PUBLISHER'S VENDING SERVICE, INC., APPELLEE
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The court held that the trial court abused its discretion in denying the garnishee's motion to set aside a default judgment when the answer was served by mail prior to the default's entry.
[1] A trial court abuses its discretion by denying a motion to set aside a default judgment when an answer was mailed prior to the entry of default.
[2] Service of an answer by mail is sufficient when mailed to the plaintiff's attorney or the clerk of court at their last known address.
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Join FLexlaw to unlock all legal intelligenceA garnishee's answer to a writ of garnishment was mailed one day late by out-of-state counsel. Despite communication with plaintiff's counsel and info…
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PER CURIAM.
This is an interlocutory appeal taken by the garnishee in the trial court from an order denying its motion to set aside a default judgment. We reverse.
On November 27, 1973, the appellant was served with a writ of garnishment by the appellee at its Miami office. The writ was for any debts owed -by the appellant to the defendant, A. P. McCorkle.
On December 18, 1973, 21 days later and one day late as provided by Fla.Stat. § 77.-04, F.S.A., the appellant mailed an answer to the writ to the plaintiff’s attorney and to the Clerk of the Dade County Circuit Court. The answer was served by appellant’s New York counsel, Mr. John R. Cummings.
By affidavit, which was before the trial judge when he ruled upon the motion to set aside the default, Cummings stated that prior to mailing the answer on December 18, he had a conversation with Mr. Steven Kress of the law firm of Sandler & Sand-ler in Miami, which at the time was representing the appellee.
Cummings stated that he informed Kress he was prepared to answer the writ of garnishment “almost immediately” and requested to know if an extension of time would be acceptable. He stated that Kress’ response was in the form of question inquiring why Merrill Lynch did not retain a Florida lawyer to answer the writ, and further stating that he would only speak to a Florida attorney regarding the garnishment proceeding.
Cummings then telephoned the office of the Dade County Clerk of the Circuit Court, and learned that his answer could still be filed and could be filed by mail. In addition, he was informed that a non-Florida lawyer could complete the answer. On December 19, 1973, plaintiff’s counsel had the clerk enter a default against the garnishee pursuant to RCP 1.500(a), 31 F. S.A., and on the same day submitted to the court a motion for final judgment on the default, which was entered and recorded.
Thereafter, on December 28, 1973 the answer was received by the Clerk of the Circuit Court. On January 4, 1974, a writ of execution issued, and on January 11, 1974 three sheriff’s deputies entered Merrill Lynch’s Miami office, threatening to levy upon the garnishee’s physical properties therein. Under these circumstances, the appellant tendered a check under protest in the sum of $3,452.94 to the sheriff.
The appellant has presented three points on appeal challenging the failure of the trial court to set aside the default judgment. For purposes of our determination of this case, we have considered all three points as one. It is our conclusion that under the facts of the cause sub ju-dice, the trial court abused his discretion by denying the motion to set aside the default judgment entered against the garnishee.
Rule 1.500(a) provides for the entry of a default by the clerk, a purely ministerial act, where a party has failed to file or serve any paper in the action. Rule 1.-500(a) permits a party to plead at any time prior to the entry of a default, which was done in the instant case. Rule 1.080(b), 30 F.S.A., provides, “. . . Service on the attorney or party shall be made by delivering a copy to him or by mailing it to him at his last known address . . . ” [Emphasis supplied.]
From a reading of these procedural rules, it is apparent that at the time the appellee caused a default judgment to be entered an answer had been served by mail; therefore, the trial court should have set aside the default judgment previously entered. See, Mo-Con Properties, Inc. v. American Mechanical, Inc., Fla.App. 1974, 289 So. 2d 744; Pollack v. Korn, Fla.App. 1970, 237 So. 2d 556; Gilmer v. Rubin, Fla.App. 1957, 98 So. 2d 367; Pan American World Airways v. Gregory, Fla.App. 1957, 96 So. 2d 669.
The purpose of a default judgment is to prevent a defendant from employing dilatory tactics during the pendency of a case; it is not intended to relieve the plaintiff of the burden of contesting his claim against the defendant or to afford any advantage to the plaintiff against any defense which the defendant may raise. Coggin v. Brafield, Fla.1942, 150 Fla. 551, 8 So. 2d 9; North Shore Hospital, Inc. v. Barber, Fla. 1962, 143 So. 2d 849; Gordon v. Vaughan, Fla.App.1967, 193 So. 2d 474.
Therefore, for the reasons stated and upon the authorities cited, the order appealed is reversed and the default judgment entered against the garnishee is set aside. The cause is remanded to the trial court for further proceedings consistent herewith.
Reversed and remanded.
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McALICE v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979)…nt reached without the difficulty that arises from contest by 'defendant. Hamilton v. Bogorad, Klein, Schulwolf, Masciovecchio, Inc., 275 So. 2d 41 (Fla. 3d DCA 1973); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Publisher’s Vending Service, Inc., 296 So. 2d 570 (Fla. 3d DCA 1974); Country Clubs of Sarasota, Ltd. v. Zaun Equipment, Inc., 350 So. 2d 539 (Fla. 1st DCA 1977). If original service of process is so defective as to amount to no notice, judgment based thereon must be deemed void. Craven v. J. M. Fi…
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Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984)…nty-third day. The court in Meyer-son held that since service was effective when mailed, that is, on the nineteenth day, the entry of default was improper. See also, Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Publishers Vending Services, Inc., 296 So. 2d 570 (Fla. 3d DCA 1974), cert. den., 305 So. 2d 208 (Fla.1974); MoCon Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla. 4th DCA 1974). [*538] Accordingly, default was entered prematurely in the case at bar. In such circumstances, a defe…
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Beztak Constr. Co. v. Kesling Carpets, Inc., 596 So. 2d 1297 (Fla. 2d DCA 1992)…mplete upon mailing. Rule 1.080(b), Fla.R.Civ.P. Rule 1.500 does not contain the word “timely.” Accordingly, the entry of the default by the clerk was erroneous. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Publisher’s Vending Services, Inc., 296 So. 2d 570 (Fla. 3d DCA), cert, denied, 305 So. 2d 208 (Fla.1974); Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So. 2d 744 (Fla. 4th DCA 1974). Entry of the final default judgment based upon the clerk’s default was likewise erroneous. When the mat…
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
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- 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)
- Gordon v. Vaughan, 193 So. 2d 474 (Fla. 3d DCA 1967)
- Gilmer v. Rubin, 98 So. 2d 367 (Fla. 3d DCA 1957)
- Morgan v. State, 289 So. 2d 744 (Fla. 4th DCA 1974)
- Mo-Con Props., Inc. v. Am. Mech., Inc., 289 So. 2d 744 (Fla. 4th DCA 1974)
- Pollack v. Korn, 237 So. 2d 556 (Fla. 3d DCA 1970)