STERLING DRUG, INC., A FOREIGN CORPORATION, APPELLANT,
v.
FRANCIS E. WRIGHT, APPELLEE
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Sterling Drug appeals the trial court's order reinstating a default judgment that had been previously vacated. The court held that it retained jurisdiction to reinstate the interlocutory order of vacation because Rule 1.540(b) applies only to final judgments, and courts maintain plenary power over interlocutory orders during the pendency of litigation.
The trial court had jurisdiction to reinstate the default judgment because Rule 1.540(b) applies only to final judgments and decrees, not interlocutory orders. Courts retain complete power during the progress of a case to rescind, set aside, or modify interlocutory orders prior to final judgment.
[1] A court always retains jurisdiction during the progress of a case to rescind, set aside, or modify its own orders prior to final judgment.
[2] Florida Rule of Civil Procedure 1.540(b), which governs relief from judgments, applies only to final orders, not interlocutory ones.
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Join FLexlaw to unlock all legal intelligence“A court always has jurisdiction during the progress of a case to rescind, set aside, or modify orders prior to final judgment.”
Establishes the core principle that trial courts retain plenary power over interlocutory orders regardless of time limitations that apply to final judgments.
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Join FLexlaw to unlock all legal intelligenceA default judgment was entered against Sterling Drug on March 12, 1973, but was vacated on June 27, 1973. On July 2, 1974, the plaintiff filed a motio…
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SCHEB, Judge.
Appellant seeks review by interlocutory appeal from an order reinstating a default judgment against it.
Appellee-plaintiff sued appellant-defendant and a default judgment was entered on March 12, 1973; however, it was vacated on June 27, 1973. On July 2, 1974, appellee filed a motion entitled “Suggestion of Fraud Upon the Court, Suggestion of Misrepresentation and False Testimony and Motion for Reconsideration.” On September 10, 1974, the court set aside its order of June 27, 1973, and reinstated the default judgment; holding, however, that there had been no fraud by either appellant or its attorney and granting the appellant additional time to file an amended motion to set aside the default judgment. A motion for rehearing was denied October 7, 1974, and this appeal followed.
Appellant argues that the trial court was without jurisdiction since appellee’s motion of July 2, 1974 was pursuant to RCP 1.-540(b) and absent certain stipulated exceptions not applicable here, must have been filed within a one-year time limit.
RCP 1.540(b) by its terms refers to “. . . a final judgment, decree, order or proceeding . . .”, whereas the trial court’s order of June 27, 1973 in the case sub judice was interlocutory in character.1 A court always has jurisdiction during the progress of a case to rescind, set aside, or modify orders prior to final judgment. North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So. 2d 849; Trawick, Fla. Practice & Procedure, § 25-3. The power of a federal court to modify an interlocutory order is not limited by Federal Rule 60(b), the prototype of RCP 1.540(b).2
Since RCP 1.540(b) applies only to final and not interlocutory orders, the trial court had jurisdiction to reinstate the default judgment which it had previously set aside. Moreover, the appellant’s rights were sufficiently protected since the lower court allowed the appellant 20 days “. . .to file its amended motion to vacate the default judgment and set aside the final judgment, together with notice of hearing thereon; at such hearing all witnesses should be present.”
Accordingly, the order of the lower court is affirmed.
McNULTY, C. J., and GRIMES, J., concur. . See earlier opinion of this court in Wright v. Sterling Drugs, Inc., Fla.App.2d 1973, 287 So. 2d 376.
. The Advisory Committee Note to the 1948 amendment of Rule 60(b) said in part: “The addition of the qualifying word ‘final’ emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and lienee interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.” 5 F.R.D. 477, at 479; see also Wright & Miller, Federal Practice and Procedure : Civil § 2852.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Leibman v. Sportatorium, Inc., 374 So. 2d 1124 (Fla. 4th DCA 1979)…t are not determinative.1 Despite some indication as to the survival of appeals from orders vacating clerk’s defaults, I am persuaded by the Praet v. Martinez, supra, reasoning. As indicated in Praet and in the case of Sterling Drug, Inc. v. Wright, 307 So. 2d 494 (Fla. 2d DCA 1975), Rule 1.540 applies only to final and not interlocutory orders. A court always has jurisdiction during the progress of a case to set aside or modify interlocutory orders before final judgment. North Shore Hospital, Inc. v. Barber,…
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The Travelers Indem. Co. v. Walker, 401 So. 2d 1147 (Fla. 3d DCA 1981)…sion under Fla.R.Civ.P. 1.090(a). . In contrast, the trial court retains jurisdiction to alter interlocutory orders at any time prior to final judgment. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Sterling Drug, Inc. v. Wright, 307 So. 2d 494, 495 (Fla. 2d DCA 1975). . We note that Travelers did not call the jurisdictional defect to the attention of the trial court. . The effect of this disposition is to recognize the continuing efficacy of the order of March 5, 1980.…
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Jarrell v. Huffman, 341 So. 2d 268 (Fla. 2d DCA 1977)…ubstantive right and the order is not interlocutory in nature. Hoffman v. Jackson’s Minit Markets, Inc., 313 So. 2d 722 (Fla.1975). Therefore, unlike interlocutory orders it does not remain subject to modification. Cf. Sterling Drug, Inc. v. Wright, 307 So. 2d 494 (Fla. 2d DCA 1975). In fact, in the absence of fraud or clerical error, once the motion for a new trial is determined it is not even subject to a motion for rehearing. State v. Burton, 314 So. 2d 136 (Fla.1975); Mathis v. Butler, 128 So. 2d 142 (Fla…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Wright v. Sterling Drugs, Inc., 287 So. 2d 376 (Fla. 2d DCA 1973)