Ser-Nestler, Inc. v. General Finance Loan Co. of Miami Northwest

• Decision Date: 15 September 1964
• Docket Number: INC,No. 64-133,SER-NESTLE,64-133
• Citation: 167 So.2d 230
• Parties: , a Florida corporation, Appellant, v. GENERAL FINANCE LOAN COMPANY OF MIAMI NORTHWEST, a Florida corporation, and Dave and Emma Grace, Appellees.
• Court: Florida District Court of Appeals

Page 230

167 So.2d 230

SER-NESTLER, INC., a Florida corporation, Appellant, v. GENERAL FINANCE LOAN COMPANY OF MIAMI NORTHWEST, a Florida corporation, and Dave and Emma Grace, Appellees.

No. 64-133.

District Court of Appeal of Florida, Third District.

Sept. 15, 1964.

Kaplan, Ser, Abrams & O'Malley and Richard A. Sicking, Miami, for appellant.

Ferer & English and William John Mason, Miami, for appellees.

Before BARKDULL, C. J., and CARROLL and HORTON, JJ.

PER CURIAM.

The appellee General Finance Loan Company sued the appellees Dave and Emma Grace in the Civil Court of Record of Dade County, to recover on a promissory note executed by the latter. Grace and his wife failed to answer the complaint and a default and final judgment were entered against them. Grace at that time was apparently employed by the appellant and a writ of garnishment was directed by the appellee General Finance Loan Company to the appellant to which writ the appellant failed to make answer or return. The trial judge then directed the issuance of a scire facias to the appellant who in turn made return to the scire facias contending (1) that the monies sought to be garnished were due the head of a family for personal services, and (2) that the garnishee was indebted to Grace for only $20 up to the time of the service of the writ of garnishment. The appellee General Finance Loan Company then moved in accordance with Rule 2.12(b), Florida Rules of Civil Procedure, 31 F.S.A., for judgment against the garnishee and judgment in the full amount of the judgment against Grace was entered against the appellant garnishee. The appellant then filed a motion to set aside the default judgment and final judgment in garnishment contending that the sums due by it to Grace were for wages and were exempt under § 222.11, Fla.Stat., F.S.A., since Grace was the head of a family and the monies due him were for personal services. In addition, it was urged that Rule 2.12, supra, was unconstitutional. Upon hearing these motions, the trial judge entered an amended final judgment in which he reduced the judgment against the appellant garnishee from the full amount rendered against Grace to $480 and held that Rule 2.12(b), supra, was unconstitutional and in violation of Article V, Section 3 of the Florida Constitution, F.S.A. The reduction in the judgment was based upon the appellant's showing that it had paid Grace from June 27, 1963, up to and including August 23, 1963, the sum of $480 as wages. The...