Gilmer v. Rubin, 57-221
| Decision Date | 19 November 1957 |
| Docket Number | No. 57-221,57-221 |
| Citation | 98 So.2d 367 |
| Parties | Ellen GILMER, Appellant, v. Jack RUBIN, Nathan Rubin and Murray Rubin, d/b/a Rubin Bros. Plastering Co., Inc., Appellees. |
| Court | Florida District Court of Appeals |
Gustafson, Persandi & Vernis, Coral Gables, for appellant.
Brown, Dean, Adams & Fischer, Miami, for appellees.
Appellant suffered personal injuries and property damage when a truck operated by one of appellees' employees and an automobile driven by appellant collided at the intersection of Northwest 27th Avenue and 151st Street, in the City of Opa-Locka, Florida. The appellant charged that the collision occurred through the ngeligent operation of appellees' truck.
The appellant's claim for damages was filed in the lower court on December 13, 1955. Service of process was had upon Nathan Rubin on December 22, 1955, and upon Jack Rubin on December 27, 1955. Praecipe for default for failure to file an answer or otherwise plead was filed by appellant with the clerk of the court below on January 17, 1956. A default was entered by the clerk against both appellees on January 17, 1956, 'for failure to file answer or other pleadings.'
All of the appellees, through their counsel, filed answer to the complaint on January 18, 1956, to which there was attached certification by their counsel that a copy of said answer had been mailed to appellant's counsel on January 17, 1956.
After the taking of depositions, the propounding of interrogatories and other pretrial maneuvers, the case went to trial before the lower court and a jury on January 21, 1957. At the conclusion of the appellant's case, which consisted of the testimony of a police officer from the City of Opa-Locka who investigated the accident, and the appellant, the lower court judge, upon motion of the appellees, directed a verdict in favor of the appellees. Judgment was entered on the verdict. This appeal is from the judgment.
Two questions were raised on appeal in this court by the appellant, namely: (1) Did the lower court abuse its discretion in setting aside the default entered against two of the appellees, and (2) Was the lower court in error in directing a verdict for the appellees at the conclusion of the appellant's case. We conclude that both of these questions should be answered in the negative.
The first proposition raised by the appellant appears to have been answered by our ruling in Pan American World Airways, Inc., v. Gregory, Fla.App., 1957, 96 So.2d 669. In that case we distinguished between the failure to file a pleading and the failure to serve a pleading within the time prescribed by the rules. Rule 2.9(a), Florida Rules of Civil Procedure, 31 F.S.A., penalizes the failure to serve a pleading and, when read with Rule 1.4(d), 30 F.S.A., which requires the filing of pleadings with the court '* * * either before service or immediately thereafter * * *', it becomes apparent that appellee was not in default under the rule inasmuch as the answer was served before a proper request for default was made.
Regarding the second question posed by appellant, the testimony before the court consisted of 39 pages, and, as previously indicated, was given by two witnesses--a police officer of the City of Opa-Locka and the appellant. The appellant in her brief puts great emphasis on the fact that the appellees' employee failed to yield the right of way and made a left turn across oncoming traffic, and...
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Ball v. Inland Mut. Ins. Co., 59-51
...not lawfully find a verdict for the plaintiff. See Swilley v. Economy Cab Co. of Jacksonville, Fla. 1951, 56 So.2d 914; Gilmer v. Rubin, Fla.App.1958, 98 So.2d 367; Traurig v. Spear, Fla.App.1958, 102 So.2d 165; Manganelli v. Covington, Fla.App.1959, 114 So.2d Upon a careful review of the r......
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Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Publisher's Vending Services, Inc., 74--221
...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 defenda......
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Willyerd v. Anderson
...to Serve a copy of written answer or defenses prior thereto. In this respect the court misconstrued the teaching of Gilmer v. Rubin, Fla.App.1957, 98 So.2d 367, Pan American World Airways, Inc. v. Gregory, Fla.App.1957, 96 So.2d 669, and like A defendant personally served with process is re......
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Baro v. Wilson, 61-72
...upon which a jury could lawfully find for the plaintiff. See Manganelli v. Covington, Fla.App.1959, 114 So.2d 320; Gilmer v. Rubin, Fla.App.1957, 98 So.2d 367; Swilley v. Economy Cab Co. of Jacksonville, Fla.1951, 56 So.2d In accordance with the aforementioned principles, the court takes th......