Lawn v. Wasserman

• Decision Date: 09 September 1969
• Docket Number: No. 69--383,69--383
• Parties: Craig LAWN, a minor, by his father and next friend, Roy Lawn, and Roy Lawn, individually, Appellants, v. Irving WASSERMAN and Sheldon Wasserman, Appellees.
• Court: Florida District Court of Appeals

Page 261

226 So.2d 261

Craig LAWN, a minor, by his father and next friend, Roy Lawn, and Roy Lawn, individually, Appellants, v. Irving WASSERMAN and Sheldon Wasserman, Appellees.

No. 69--383.

District Court of Appeal of Florida, Third District.

Sept. 9, 1969.

Walton & Garrick, Miami, for appellants.

Horton & Schwartz, Milton Miller, Miami, for appellees.

Before PEARSON, C.J., and CHARLES CARROLL and BARKDULL, JJ.

PEARSON, Chief Judge.

This interlocutory appeal is taken from an order setting aside default and final judgment and dissolving writs of garnishment. The appellants were the plaintiffs in the trial court. Their complaint sought damages for the alleged negligence of the appellees, Irving Wasserman and Sheldon Wasserman. The complaint also alleged the negligence of Rober Benson, a defendant who is not party on this appeal. The action arose out of an intersectional automobile collision. A default was entered against appellees, Irving Wasserman and Sheldon Wasserman, for failure to plead. Thereafter the cause was placed on the trial calendar by an order of the trial court. Prior to trial the defendant Roger Benson was dismissed by the appellants. After a jury trial the appellants received a judgment for $37,750 damages against the appellees. After the entry of judgment and the issuance of writs of garnishment, the appellees moved for and were granted an order setting aside the default and the final judgment. This appeal is from that order.

Appellants' complaint was filed on August 14, 1968. Personal service was had upon the appellees on August 20, 1968. On September 13, 1968, a default was duly and regularly entered against the appellees for failure to serve of file answer or other pleading. The remaining defendant, Roger Benson, filed an answer denying the allegations of negligence. Thereafter the appellants filed a motion for jury trial, and the trial court entered an order specially setting the cause for trial for the week of February 17, 1969. The appellants did not serve a copy of their motion for jury trial upon the appellees nor was a copy of the order setting cause for trial mailed to or served upon the appellees.

On February 19, 1969, the appellants stipulated to the dismissal of the defendant Roger Benson and proceeded only with their claim against the appellees. The cause same on for trial, and the ex parte trial resulted in a verdict and judgment as mentioned above. The judgment was entered on February 21, 1969. On April 23, 1969, after the issuance of writs of garnishment, the appellees served their motion for relief from the default and the final judgment. The motion claimed relief pursuant to Rule 1.540(b), RCP, 31 F.S.A. In an attempt to set forth excusable neglect under that rule, the appellees alleged:

'2. That civil summonses were served upon the defendants Wasserman in this cause on the 20th day of August, 1968. Shortly after the service of said summonses and copies of the complaint on these defendants, the defendant Irving Wasserman sent or caused to be delivered to Gerald Seigel, Guardian Underwriter, Hollywood, Florida, agent for National Service Fire Insurance Company, he summonses and complaints since the insurance contract which Irving Wasserman had with said insurance company required that they be notified of and furnished with notification of the institution of a civil action in which the insured automobile was involved, and also said insurer would defend said action on behalf of the defendant Irving Wasserman. Copy of receipt for said summonses and complaints is attached hereto as Exhibit #1. A copy of the accident or loss report was also furnished to the agent of the insurer by these defendants. After the delivery of copies of the summonses and complaints to the agent of the insurance carrier, these defendants heard nothing further and it was not until on or about April 17, 1969, that these defendants became aware of the fact that a default and final judgment had been entered against them. This information was imparted to them by the fact that defendants' bank accounts or savings accounts in Washington Federal Savings & Loan Association of Miami Beach and Chase Federal Savings & Loan Association were garnisheed by the plaintiffs. The writ of garnishment was issued on April 16, 1969, against the aforesaid banks.

3. These defendants thereafter immediately sought legal advice and determined that a default had been entered against them in this cause on the 13th day of September, 1968, for failure to serve or file an answer or other pleadings. These defendants were at all times material lulled into a sense of security and inaction by the representations of the agent of their insurance carrier that National Service Fire Insurance Company would defend the action on their behalf and advise them if and when their presence was necessary in the course of the litigation. These defendants assert that other than the receipt of the original service of process, and their knowledge gained on or about April 17th that their savings account in Washington Federal Savings & Loan Association of Miami Beach and Chase Federal Savings & Loan Association had been garnisheed, they were unaware that a default and final judgment had been entered against them.

4. The final judgment in this...