Mullins Lumber Co. v. W.W. Lumber and Bldg. Supplies, Inc., s. 82-1809

• Decision Date: 28 September 1983
• Docket Number: 82-1927,Nos. 82-1809,s. 82-1809
• Citation: 446 So.2d 1083
• Parties: MULLINS LUMBER COMPANY, Appellant/Cross Appellee, v. W.W. LUMBER AND BUILDING SUPPLIES, INC., Appellee/Cross Appellant, v. GUILDWAY BUILDING SYSTEMS, INC., Panelized Building Systems, Inc., and Richard Harvey, Appellees.
• Court: Florida District Court of Appeals

Page 1083

446 So.2d 1083

MULLINS LUMBER COMPANY, Appellant/Cross Appellee, v. W.W. LUMBER AND BUILDING SUPPLIES, INC., Appellee/Cross Appellant, v. GUILDWAY BUILDING SYSTEMS, INC., Panelized Building Systems, Inc., and Richard Harvey, Appellees.

Nos. 82-1809, 82-1927.

District Court of Appeal of Florida,

Fourth District.

Sept. 28, 1983.

On Rehearing March 14, 1984.

Freeman W. Barner, Jr., of Cromwell & Remsen, Riviera Beach, for appellant/cross appellee.

Robert L. Sader of Tworoger, Sader & Ferrell, P.A., Fort Lauderdale, for appellee/cross appellant, W.W. Lumber and Building Supplies.

BERANEK, Judge.

Appellant argues that the trial court erred by denying its motion to dissolve a writ of garnishment. We agree based on C & S Plumbing, Inc., v. Live Supply, Inc., 397 So.2d 998 (Fla. 4th DCA 1981).

A final judgment awarding W.W. Lumber $26,823.52 was filed on February 2, 1981. On February 5, 1981, W.W. Lumber filed a motion for writ of garnishment naming Mullins Lumber as garnishee. The writ was issued the same day and served on garnishee one day later. Appellant then filed a motion to dissolve the writ of garnishment as untimely filed and executed, which the trial court denied.

We reverse on the basis of our opinion in C & S Plumbing, Inc., supra, wherein we stated, "The time for serving a motion for new trial or rehearing has not expired; therefore, the writ was issued prematurely." Accordingly, we reverse and remand for action consistent herewith.

REVERSED AND REMANDED.

ANSTEAD, C.J., and DELL, J., concur.

ON REHEARING

BERANEK, Judge.

Appellant argues that the trial court erred by denying its motion to dissolve a writ of garnishment. We agree based on C & S Plumbing, Inc. v. Live Supply, Inc., 397 So.2d 998 (Fla. 4th DCA 1981).

A stipulated judgment awarding W.W. Lumber $26,823.52 was filed on February 2, 1981. On February 5, 1981, W.W. Lumber filed a motion for writ of garnishment naming Mullins Lumber as garnishee. The writ was issued the same day and served on garnishee one day later. Appellant then filed a motion to dissolve the writ of garnishment as untimely filed and executed, which the trial court denied.

We reverse on the basis of our opinion in C & S Plumbing, Inc., supra, wherein we stated, "The time for serving a motion for new trial or rehearing had not expired; therefore, the writ was issued prematurely." Accordingly, the writ is dissolved and the cause is remanded for action consistent herewith.

WRIT DISSOLVED AND CAUSE REMANDED.

DELL, J., concurs.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge, dissenting:

I would grant the petition for rehearing on the basis that this case is distinguishable from our decision in C & S Plumbing, Inc. v. Live Supply, Inc., 397 So.2d 998 (Fla. 4th DCA 1981). The C & S Plumbing opinion does not state whether the judgment under consideration therein was stipulated, whereas it is undisputed herein that the judgment permitting execution forthwith was stipulated to by all parties.

Florida Rule of Civil Procedure 1.550 provides that no final process on a judgment may issue before the time for moving for a rehearing has expired unless by special order of the court. In view of the stipulated nature of the...