Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co. v. Barrett

• Decision Date: 27 April 1965
• Docket Number: No. 64-834,64-834
• Citation: 174 So.2d 417
• Court: Florida District Court of Appeals
• Parties: PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. Linda BARRETT, a minor, by her natural mother and next friend, Louise Dawson, and Louise Dawson, individually, and Fred E. Traister, Appellees.

Page 417

174 So.2d 417

PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. Linda BARRETT, a minor, by her natural mother and next friend, Louise Dawson, and Louise Dawson, individually, and Fred E. Traister, Appellees.

No. 64-834.

District Court of Appeal of Florida, Third District.

April 27, 1965.

John G. Poole, Jr. and James J. Kenny, Miami, for appellant.

Gilbert A. Frank, Miami Beach, for appellees.

Before BARKDULL, C. J., and TILLMAN PEARSON and SWANN, JJ.

TILLMAN PEARSON, Judge.

The appellant has brought for review a summary final judgment in a garnishment proceeding. The appellees, Linda Barrett and Louise Dawson, recovered a final judgment in a personal injury action and then garnished the defendant's insurance carrier.

It is apparent from the record that the basis for the summary judgment in the garnishment proceeding was the trial judge's conclusion that the law of the case before him had been fully established by a decision in another trial court involving the same parties. This conclusion was not warranted because the decision relied upon had been appealed and superseded at the time of the summary final judgment. A supersedeas has the effect to suspend all further proceedings in relation to a judgment superseded, but it does not, like a reversal, annul it. The supersedeas, being preventive in nature, does not set aside what the trial court has adjudicated, but stays further proceeding in relation to the judgment until the appellate court acts thereon. Bacon v. Green, 1894, 36 Fla. 313, 18 So. 866. The act of the trial judge in the court below involved a proceeding in relation to the judgment superseded and should have been stayed until the disposition of the appeal had become final. The wisdom of the rule cited is borne out by the fact that the judgment relied upon has since been reversed by the Court of Appeal, Second District. See Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company v. Traister, Fla.App.1965, 173 So.2d 153 [opinion filed 2/19/65].

In order to reach the question discussed above, it was necessary for us to consider appellant's contention that it was entitled to a judgment as a matter of law because the traverse of its answer was filed more than ten days after the filing of the answer. Rule 2.12(a) Fla.R.Civ.P., 31 F.S.A.

'(a) Time for Traverse. When any garnishee answers at the time required by law and the plaintiff is not satisfied with the answer of any such garnishee, he shall within 10 days thereafter file a statement traversing the allegations of the garnishee in such particulars as he desires, whereupon the cause shall proceed as provided by law. Upon failure of the plaintiff to file such traverse such answer shall be taken as true and upon proper disposition of the assets, if any disclosed thereby, the garnishee shall be entitled as of course to an order discharging him from further liability under the writ.'

In the present instance the writ of garnishment made no reference to insurance. Furthermore, the sworn answer of the garnishee simply denied that it was indebted to the defendant. The garnishee did not reveal its full defense which was its contention that it was not liable upon the contract of insurance issued to the defendant in the principal action (even though it had defended the principal action for its alleged insured). This answer while sufficient in form was not complete. See Jax Ice & Cold Storage Co. v. South Florida Farms Co., 1926, 91 Fla. 593, 109 So. 212, 48 A.L.R. 957. The garnishor...