Dezen v. Slatcoff

• Decision Date: 26 May 1953
• Citation: 65 So.2d 484
• Parties: DEZEN v. SLATCOFF.
• Court: Florida Supreme Court

Page 484

65 So.2d 484

DEZEN v. SLATCOFF.

Supreme Court of Florida, Division B.

May 26, 1953.

Rehearing Denied June 15, 1953.

J. M. Flowers, Miami, for appellant.

Ginsberg & Pelle, Miami, for appellee.

THOMAS, Justice.

Before stating, discussing and deciding the questions we feel obliged to answer we shall give the chronology of the procedure in the trial court leading to the judgment under attack here.

The action, which was commenced in the Florida court 20 February 1952, was based on a judgment obtained by the appellee in a Court of Common Pleas in Pennsylvania, 14 October 1930, more than twenty years before.

After an unsuccessful attempt to dismiss the complaint the defendant filed his answer presenting the principal defense that the claim had been discharged by payment. The plaintiff then moved that the answer be stricken because it was a sham. The matter was pending on this motion when the deposition of the defendant was taken, counsel for both parties litigant being present and participating in the examination.

Under Common Law Rule 14(a), 30 F.S.A., the plaintiff was privileged at this point to make such a motion and the court was required to consider the evidence, and to grant the motion, if it was sustained. The appellant now insists that we should reverse the judgment because the motion was defective and further because the plaintiff offered no proof of demand or nonpayment, or evidence from which these elements could be inferred. In a sense, this motion did not strictly comply with the rule because it did not 'set forth fully the facts on which the movant' relied, but we think the fault was cured by subsequent events and that interference on our part would require too much emphasis on the form of the rule and too little on the substance.

The defendant in his deposition had had every opportunity to disclose what had occurred that the thought constituted payment, information which was as much in his possession as his adversary's, and his attempt was, to say the most, very feeble. He admitted the entry of the judgment and conceded that he had not paid it in full but he claimed to have paid a stipulated amount 'towards the settlement of that judgment.' Upon further examination he explained that the money had been paid by his brother to a named lawyer. We do not know whom this attorney represented, but it is clear from the record that he was not counsel for the plaintiff in the case in Pennsylvania.

As to details and circumstances of any supposed payment, he was patently ignorant. Such was the gist of his testimony. We cannot see the justness of holding that reversal should be ordered simply because the failure of movant to detail, awkwardly in the negative, a situation refuting an affirmative plea of payment, especially when the pleader in a deposition already taken had admitted...