Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 71-1088
| Decision Date | 02 May 1972 |
| Docket Number | No. 71-1088,71-1088 |
| Citation | 261 So.2d 540 |
| Court | Florida District Court of Appeals |
| Parties | IMPERIAL INDUSTRIES, INC., a Delaware corporation, and Triangle Properties, Inc., a Florida corporation, Appellants, v. MOORE PIPE & SPRINKLER CO., a Florida corporation, Appellee. |
Myers, Kaplan, Porter, Levinson & Kenin and Thomas R. Spencer, Jr., Miami, for appellants.
Shutts & Bowen, Miami, and Karl V. Hart, Coral Gables, Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee.
Before PEARSON and CHARLES CARROLL, JJ., and NATHAN, RAYMOND G., Associate Judge.
The appellants seek review of an order denying their motion to vacate a default entered against them and to set aside a default judgment entered pursuant to the default. In the trial court, the appellants were the defendants in an action brought by the plaintiff-appellee to foreclose a mechanic's lien. Service of the summonses was effected in August, 1971; default was entered on September 3rd against Triangle Properties, Inc., and on September 10th against Imperial Industries, Inc. Appellants' motion to vacate the defaults was filed on September 23rd; an answer and counterclaim were tendered on September 24th. The court denied the motion to vacate the defaults. We hold that the trial court erred in failing to apply the principles set forth by the Supreme Court of Florida in North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849.
The appellants contend that the affidavits on file indicate that when the summonses and complaint were served by the sheriff, that the representative served was under the impression that the serving officer would also serve appellants' counsel and resident agent. This allegation is to some extent strengthened by the fact that the summonses on the face instructed the serving officer to attempt service upon the resident agent. The president of the appellants further alleged that the summonses were lost in his office and that he did not become aware that an answer had not been filed until September 22nd, eight days after the entry of the default judgment. The affidavit of the resident agent alleged that he was out of the country at the time of the service and that the did not receive knowledge of the suit until September 22nd. There is nothing in the record to contradict any of the statements in the resident agent's affidavit.
Based on these facts, we think that the court should have vacated the default and set aside the judgment of foreclosure upon such conditions as appeared proper to the trial court. See Rule 1.540(b), R.C.P., 31...
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...rather than upon procedural technicalities. Gordon v. Vaughan, 193 So.2d 474 (Fla. 3 DCA 1967); Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla. 3 DCA 1972). The rule with respect to remedying defaults in actions generally is applicable to garnishment proceedings......
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...applications for relief so as to permit a determination of the controversy upon the merits. Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla. 3d DCA 1972). The purpose of a judgment by default is to speed the cause and prevent the defendant from impeding the plain......
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...Agency, Inc. v. Diaz, 351 So.2d 1137, 1139 (Fla. 2d DCA 1977) (alterations in original) (quoting Imperial Indus., Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540, 542 (Fla. 3d DCA 1972)). Here, to the extent that the circuit court concluded that the Bank had failed to establish "the factu......
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...338 So.2d 74 (Fla.3d DCA 1976). See also Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977) ; Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla.3d DCA 1972); Travelers Insurance Co. v. Bryson; North Shore Hospital, Inc. v. Barber. Additionally, appellant state......