Metcalf v. Langston

• Decision Date: 18 June 1974
• Docket Number: No. V--144,V--144
• Citation: 296 So.2d 81
• Parties: Danny Ray METCALF et al., Appellants, v. Betty M. LANGSTON and Claude Langston, Jr., Appellees.
• Court: Florida District Court of Appeals

Page 81

296 So.2d 81

Danny Ray METCALF et al., Appellants, v. Betty M. LANGSTON and Claude Langston, Jr., Appellees.

No. V--144.

District Court of Appeal of Florida, First District.

June 18, 1974.

E. Harper Field, of Keen, O'Kelley & Spitz, Tallahassee, for appellants.

James W. Grimsley, of Smith, Tolton, Grimsley & Barron, Fort Walton Beach, Stanley Bruce Powell, of Douglass & Powell, and William F. Daniel, of Cotten, Shivers, Gwynn & Daniel, Tallahassee, for appellees.

BOYER, Acting Chief Judge.

We have for review an order of the Circuit Court denying a motion to vacate and set aside a default entered against Southern Farm Bureau Casualty Insurance Company, appellant.

In State Bank of Eau Gallie v. Raymond, 1931, 103 Fla. 649, 138 So. 40, the Supreme Court of Florida, citing and quoting from Benedict v. W. T. Hadlow Co., 52 Fla. 188, 42 So. 239, said:

"Whether a default properly entered should be set aside is for the determination of the court in the exercise of a sound judicial discretion, upon a consideration of all the facts and circumstances of the particular case, which would show the good cause required by the statute." (138 So. at page 41)

Reversing the trial court the Supreme Court further said:

'Where a default has been entered and a timely application is made to set aside the default and permit a plea or answer on the merits to be filed, and such plea or answer discloses upon its face a good and meritorious defense, as a general rule, if there be any reasonable doubt in the matter, it should be resolved in favor of granting the application and allowing a trial upon the merits of the case. 15 R.C.L. 721, § 175' (138 So. at page 43)

Probably the most often cited case relative to vacating defaults is Coggin v. Barfield, 1942, 150 Fla. 551, 8 So.2d 9, wherein the Supreme Court of Florida said:

'Authority for the vacation of a default 'for good cause shown' and to allow the defendants to plead, or even demur, is found in Section 4287, C.G.L.1927. It is the rule that the opening of judgments is a matter of judicial discretion and 'in a case of reasonable doubt, where there has been no trial upon the merits, this discretion is usually exercised in favor of granting the application so as to permit a determination of the controversy upon the merits.' 31 Am.Jur., Judgments, Section 717. As it is expressed in Florida Common Law Practice (Crandall) Section 54, 'the courts are reasonably liberal in granting motions to set aside defaults.' As long ago as 1863, Waterson v. Seat and Crawford, 10 Fla. 326, 331, this court announced the 'tendency of the Courts of the present age to stand less upon strict rules of practice than formerly, and to keep the door a long time open to a defendant who seems to be honestly striving to get in what he believes to be a good defense.' Even more liberal construction in favor of the defendant was given in Russ v. Gilbert, 19 Fla. 54, 57, where it was written that it would be gross abuse of discretion not to allow a defendant to present his defense if he had a meritorious one, was innocent of 'culpable negligence' and willing to plead and to 'go to trial without delay.'

'The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impending the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.

'There seems to have been no occasion for the procedure followed in order to save the plaintiff from any dilatory tactics by the defendant. The plea was one placing the cause at issue and it was known to be of that character when the default judgment was entered. The clerk and the attorneys for the plaintiff were aware, too, that the pleading would be filed in the correct court as soon as it could reach there by mail. The record is free of any indication that an immediate trial court not have been held.' (8 So.2d at page 11)

Of more recent vintage is North Shore Hospital, Inc. v. Barber, Sup.Ct.Fla.1962, 143 So.2d 849. In that case default was entered on March 10, 1960 and a motion to set aside the default was filed March 15. Accompanying the motion was an affidavit wherein it was alleged that the complaint had been served on the president of the hospital who turned it over to the administrative offices of the hospital for transmission to the insurance carrier. The administrative office, through inadvertence, misplaced the complaint, as the result of which it was not transmitted to the insurance carrier. This mistake was not discovered until March 14, 1960, whereupon the insurance company was immediately notified and counsel engaged to defend the action. The trial court granted the motion to set aside the default, which order was reversed on appeal to the Third District Court of Appeal, that court holding that the petitioner's motion to vacate together with the accompanying affidavit failed to disclose sufficient good cause to set aside the default inasmuch as the inadvertence of the hospital staff did not constitute excusable neglect. The Supreme Court reversed the District Court of Appeal, citing each of the cases hereinabove mentioned (and others), saying:

'In the Waterson case, the defendant had moved to set aside a default decree entered against him, asserting by affidavit that he had placed the complaint in the hands of his attorneys, who, for reasons unknown to him, never filed an answer. The Circuit Court denied the motion and this court reversed, holding that the defendant was not guilty of culpable negligence. In a headnote by the court, the following rule was laid down:

'Whether a default should be opened, must depend on all the facts and circumstances connected with the case. If the party be guilty of Gross negligence, the default will not be opened.' (Emphasis supplied.)

'The court also stated that '* * * it is the tendency of the courts of the present age to stand less upon strict rules of practice than formerly, and to keep the door a long time open to a defendant who seems to be honestly striving to get in what he believes to be a good defense.' Those lines were penned in 1863. When they are compared with the decision of the District Court herein, It gives cause to wonder how much progress we have made in the last hundred years toward liberalizing rules of procedure so as to achieve substantial justice.' (1943 So.2d at pages 853 and 854)

This Court, in Florida Investment Enterprises, Inc. v. Kentucky Co., Fla.App. (1st) 1964, 160 So.2d 733, stated that the exact circumstances which might constitute excusable neglect, mistake or inadvertence, allowing a default to be set aside, are not precisely defined but depend upon all factors of the case; but that the general rule is that relief from default may be granted within the sound discretion of the trial court upon a showing of existence of meritorious defense and legal excuse for failure to comply with the rules.

We now turn to the facts in the case sub judice to determine how they square with the rules announced in the above cited cases.

The plaintiffs below, appellees here, brought suit in the Circuit Court of Wakulla County against Danny Ray Metcalf and other individual defendants alleging injuries sustained in an automobile accident resulting from the defendants' negligence. In due course the complaint was amended to add appellant Southern Farm Bureau Casualty Insurance Company as an additional party defendant, claiming that it insured the individual defendant's vehicle which was involved in the accident. Summons was issued and served in the manner provided by our statute on the Insurance Commissioner on November 13, 1973. A motion for default was filed on December 7, 1973, and a default was entered on December 10. A motion to set aside the default was filed by appellant on January 3, 1974, which motion was denied by order dated January 15, 1974. This interlocutory appeal followed.

We have examined the record and find that the motion to set aside the default alleges in substance that upon service of process being effected upon the Insurance Commissioner, the amended complaint and summons were mailed to appellant's office in Jackson, Mississippi 'and thereafter were inadvertently delayed and were not received in the Florida office until December 26, 1973.' The claims' manager immediately telephoned the carrier's attorney who attempted to contact the plaintiffs' attorney but was unable to reach him until December 27, 1973. He was then informed that default had already been entered.

The 'wherefore' clause of the motion requests that the default be set aside and thereafter contains the following recitation:

'* * * and in addition to the inadvertence previously alleged, states that this defendant has a meritorious defense, more specifically that there was not a policy of insurance in force and effect at the time of the alleged cause of action complained of that would be applicable to the plaintiff's claim. Furthermore, such defendant is willing to go to trial on the merits on the earliest possible date.'

It therefore appears that the allegations of the motion, insofar as excusable neglect is concerned, meet the test laid down by our Supreme Court in the cases above cited, particularly North Shore Hospital, Inc. v. Barber, supra. Further, although contained in the prayer of the motion instead of...