Reizen v. Florida Nat. Bank at Gainesville, M--238
| Decision Date | 16 June 1970 |
| Docket Number | No. M--238,M--238 |
| Citation | 237 So.2d 30 |
| Parties | E. M. REIZEN, Appellant, v. FLORIDA NATIONAL BANK AT GAINESVILLE, a banking corporation, organized under the laws of the United States of America, Appellee. |
| Court | Florida District Court of Appeals |
Selig I. Goldin, of Tench, Goldin & Jones, Gainesville, for appellant.
Charles G. Felder, of Clayton, Duncan, Johnston, Clayton & Quincey, Gainesville, for appellee.
Appellant, defendant below in a suit to foreclose certain chattel mortgage and security instruments, seeks reversal of an order denying a motion to set aside an order of commitment, writ of attachment, and order holding him in contempt, all of which resulted from his refusal to comply with the trial court's order requiring him to deliver certain personal property to the receiver appointed in the foreclosure action.
The gist of appellant's motion to set aside the above referenced orders was that the trial court had no jurisdiction to enter such orders inasmuch as the order upon which they were predicated was entered on the same day of the final judgment and was not served upon him personally, the same having been mailed to his attorney.
The pertinent events and dates on which they occurred in the trial court are as follows. On September 23, 1968, the appellant was ordered to assemble and deliver certain collateral under the instruments sued upon to the receiver. Appellant failed to comply with the court's order to deliver and thereupon, on November 13, 1968, the lower court adjudged appellant to be in contempt but allowed him fifteen days within which to purge himself of the charge by complying with the earlier order to deliver. Appellant failed to avail himself of the opportunity to purge himself, and on April 30, 1969, a final judgment of foreclosure was entered in favor of the appellee-plaintiff. The said final judgment provided that if the sums adjudged to be due the plaintiff under the complaint were not paid within five days thereof, the clerk of the circuit court was directed to sell the mortgaged property described in the final judgment on May 19, 1969, in accordance with the provisions of Chapter 702, Florida Statutes, F.S.A.
On April 30, 1969, the trial court entered its order ruling that the appellant was in continued contempt of court for failure to comply with the court's earlier orders requiring delivery of property to the receiver; and in consequence thereof, appellant was ordered to appear before the court on May 26, 1969, to be sentenced for contempt of court or to show cause why sentence should not be imposed. The said order to appear does not appear to have been served personally upon appellant. Rather, a certificate of service was filed by counsel for appellee on May 28, 1969, certifying that on April 30, 1969, the order to appear was served on the attorney for defendant by mail. The same attorney who represented appellant in the trial court represents him in this appeal and was the recipient of the service by mail of the order to appear dated April 30, 1969. Appellant failed to appear on May 26 as he was required to do by the court's April 30 order. Accordingly, on May 28, the trial court entered its order of contempt, order of commitment and writ of attachment. It is clear from a reading of the May 28 order that it is but a reiteration of the court's earlier contempt order of November 13, 1968, except for reference therein to the appellant's failure to purge himself of contempt by his continued failure to deliver the property to the receiver as initially ordered. The order of commitment also entered on May 28 provided for the confinement of appellant for the period of 90 days in the county jail and further provided for release from confinement upon payment by him of the sum adjudged due appellee from him or by delivery of the property involved to the receiver.
Appellant was arrested on September 4, 1969, pursuant to the May 28 orders. The next day, September 5, appellant filed a petition to set aside the...
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...representation of the party in accordance with Florida Rule of Judicial Administration 2.060(i). Reizen v. Florida National Bank at Gainesville, 237 So.2d 30 (Fla. 1st DCA 1970); Ginsberg v. Ginsberg, 122 So.2d 30 (Fla.3d DCA 1960). An action is deemed pending until the expiration of the ti......
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