HARRY H. CHERETON, APPELLANT,
v.
ARMSTRONG RUBBER COMPANY, APPELLEE
PER CURIAM.
The defendant’s answer to plaintiff’s complaint raised an issue of fact that was not met by plaintiff’s affidavit in support of its motion for summary judgment. So, regardless of the insufficiency of defendant’s counter-affidavit, there remained a genuine issue of fact which should have been tried by a jury.
Accordingly, the summary judgment in favor of plaintiff should be and it is hereby reversed under the authority of Williams v. City of Lake City, Fla. 1953, 62 So. 2d 732, Wilson v. Bachrach, Fla.1953, 65 So. 2d 546, and similar cases.
Reversed and remanded for further proceedings.
DREW, C. J., and THOMAS, ROBERTS arid O’CONNELL, JJ., concur.
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Emile v. First Nat'l Bank OF Miami, 126 So. 2d 305 (Fla. 3d DCA 1961)…5. So. 2d 915. The plaintiff did not carry that burden by submitting evidence relating only to its case as made out in the complaint, when there were on file certain affirmative defenses and a set-off [Chereton v. Armstrong Rubber Company, Fla.1956, 87 So. 2d 579], particularly as the sufficiency of the affirmative defenses and set-off had been challenged and determined. See also, Wittlin v. Giacalone, 1946, 81 U.S.App.D.C. 20, 154 F. 2d 20; 6 Moore’s Federal Practice, § 56.17(4), pp. 2177-78 (2nd ed.1953).…
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- Williams v. City OF Lake City, 62 So. 2d 732 (Fla. 1953)
- Wilson v. Bachrach, 65 So. 2d 546 (Fla. 1953)