Luciano v. Service Machinery Corp.
| Citation | 112 So.2d 890 |
| Decision Date | 27 May 1959 |
| Docket Number | No. 617,617 |
| Parties | Nicholas LUCIANO, Samuel GALATI and Lucien CONTI, Appellants, v. SERVICE MACHINERY CORPORATION, INC., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Robbins, Cannova & Watson, Hollywood, and Anderson & Nadeau, Miami, for appellants.
Arthur G. Gottlieb and William Feldman, Miami, for appellee.
The appellants as plaintiffs brought an action against the appellee for recovery of approximately $24,000 paid to the appellee on the purchase price of a specific type of dredge which the appellee was to manufacture. The summons in the main action and the writ of attachment in the ancillary proceeding were served simultaneously.
Two orders were eventually entered by the trial court. One dissolved the attachment; the other, entered on the appellants motion for new trial, affirmed the order of dissolution and dismissed the main action. Both are brought to this court for review.
It appears from the complaint that appellee manufactured the dredge but sold it to someone else, agreeing to deliver to appellants a second dredge of the same model, then it sold the second dredge to anoher person whereupon the appellants declared the contract breached and sued for the amount they had deposited and incidental damages and costs. Appellants also filed an affidavit of attachment containing the statement that good reason existed to believe that the appellee was about to move its property out of the state and that it was fraudulently disposing of its property. Secs. 76.04 and 76.09, Florida Statutes 1957, and F.S.A. Upon receiving and filing the attachment bond for double the amount of the claim, the affidavit in attachment and the appellants' complaint, the clerk of the court issued the writ and summons.
When the appellee was served with the writ and summons a verified motion was filed in its behalf bearing the assertion that the allegations of the affidavit were untrue and that it did not owe the debt claimed. At the inception of the hearing on the motion to dissolve, which had been set in accordance with the provisions of Sec. 76.24, Florida Statutes 1957, and F.S.A., counsel for the appellants objected to the court's proceeding on the ground that the two-day notice of the hearing had not afforded sufficient time to produce appellants' witnesses. The court ruled that the hearing should continue on the question of the propriety of the issuance of the writ and after a brief inquiry, granted the motion to dissolve. Then the appellants made a motion that the appellee be required to file formal pleadings with reference to the debt and another motion in the alternative, i. e., for a new trial of the issue determined when the motion to dissolve was granted or for revision of the order of dissolution so that it would include a direction to file formal pleadings about the sum demanded and a provision for the trial of the issues.
Perhaps a recapitulation at this point will prove helpful to the reader, and to us in setting forth the points we will ultimately decide. Two proceedings had been set in motion, the principal action and the accessory one in attachment. Evidently the latter has, under the statute, two aspects. A traverse of any allegation precipitates a trial at which the burden is upon the plaintiff to sustain the averment and if it be not met dissolution will follow. If the debt or sum demanded is denied, the judge may upon request of either party require formal pleadings with reference to that feature. But the use of the word 'may' has been held not to place the matter in the discretion of the court. Weston v. Jones, 41 Fla. 188, 25 So. 888.
Although the appellee denied each statement in the affidavit in attachment and said that it did 'not owe the debt demanded' the court, without any reference to pleadings simply ruled 'that Defendant's Motion for Dissolution of Attachment be * * * granted.' In view of the judge's comment we conclude that it was his intention to decide initially whether or not the averments of the affidavit, exclusive of the one relating to the amount of the debt, had been sustained by the appellants and to defer trial and decision of the debt for he stated to counsel, in effect, that at that time the traverse had put in issue the truth of the allegations of the affidavit but 'not whether or not [appellee] is indebted or otherwise but whether or not the attachment is proper.' He amplified the announcement with this statement which follows immediately in the record '[n]ow then the court may, as it says there, then require formal pleadings and a trial on the issue of the debt, if they were not truly indebted $24,433.00.'
For the purpose of an allied problem we will presently reach we refer also to the...
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General Finance Loan Co. of Miami North v. Williams
...v. Levy, Fla.1933, 109 Fla. 523, 148 So. 393, and the decision of District Court of Appeal, Second District, in Luciano v. Service Machinery Corp., Inc., Fla.App., 112 So.2d 890. In the opinion under attack the district court held that an affidavit filed in an attachment in aid of foreclosu......
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Michigan Surety Co. v. Service Machinery Corp., 17920.
...of Appeal had reversed the order of the Circuit Court of Broward County which had dissolved the injunction. See Luciano v. Service Machinery Corp., Fla. App., 112 So.2d 890. By the motion the appellant sought, pursuant to Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A., to have th......