Plotkin v. Deatrick Leasing Co.
| Decision Date | 17 October 1972 |
| Docket Number | No. 72--432,72--432 |
| Citation | 267 So.2d 368 |
| Parties | Paula PLOTKIN, Appellant, v. DEATRICK LEASING CO., and John E. Coby, Appellees. |
| Court | Florida District Court of Appeals |
Horton, Schwartz & Perse; Fuller, Brumer, Moss & Cohen, Miami, for appellant.
Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appellees.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
The question presented on this interlocutory appeal is whether the court grossly abused its discretion in setting aside a default entered against the appellee. See North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849. The appellant recognizes in her argument that the policy of the courts in setting aside defaults in order to permit a trial on the merits is one of great liberality, and that the discretion of the trial judge is a heavy factor. See Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., Fla.App.1972, 261 So.2d 540. Nevertheless, appellant contends that there are some limitations upon the discretion of the trial judge in setting aside defaults. See Lawn v. Wasserman, Fla.App.1969, 226 So.2d 261; Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So.2d 107. It is urged that the court committed a gross abuse of discretion when it granted the motion to set aside default because the motion alleged no reasonable basis upon which the court could have determined that the appellee was guilty of mere excusable neglect.
Appellant's complaint in an automobile negligence suit was filed against Deatrick Leasing Company on March 19, 1971. The summons was returned showing service upon the defendant by serving Mr. Carl Hargis, 'Vice Pres(ident) in the absence of Pres(ident) and all other heads'. A default was entered against Deatrick Leasing Company on June 23, 1971. The motion to set aside default was filed February 29, 1972. The motion to set aside default alleges first that the correct name of defendant is Deatrick Leasing Corporation. The only other ground alleged is that the summons and complaint were never brought to the attention of defendant. Attached to the motion is an affidavit which sets forth (a) that the defendant is a national corporation and that it has an established procedure for the processing of all summonses and complaints which are served; and (b) that the established procedure was not followed in this case because the first knowledge the defendant had of the suit was a notice of default sent to it by certified mail. By way of embellishment, the affidavit recited that although Mr. Hargis was an experienced and knowledgeable manager on April 7, 1971 when service of process was...
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