Silverman v. Lichtman
| Decision Date | 18 June 1974 |
| Docket Number | No. 74-289,74-289 |
| Citation | 296 So.2d 495 |
| Parties | Henrietta SILVERMAN, Appellant, v. Herman R. LICHTMAN, Appellee. |
| Court | Florida District Court of Appeals |
Norman S. Solomon, Miami, for appellant.
Ben Lawson, Coral Gables, for appellee.
Before BARKDULL, C. J., and PEARSON and CARROLL, JJ.
These parties, formerly married, were divorced. Thereafter the appellant Henrietta Silverman filed this action against the appellee Herman R. Lichtman, for recovery of claimed indebtednesses. The defendant-appellee counterclaimed for certain amounts alleged to be due to him from the appellant in the aggregate sum of $3,461.64. Appellant voluntarily dismissed her claims therein against the appellee.
In support of his counterclaim the appellee caused to be issued a writ of garnishment prior to judgment. Incident thereto, the counterclaimant in his motion for writ of garnishment stated that the debt for which counterclaimant sued therein was just, due and unpaid (§ 77.031(1) Fla.Stat., F.S.A.) and filed a bond (a cash bond in this instance), conditioned as provided for by § 77.031(2) Fla.Stat., F.S.A. 'to pay all costs and damages which defendant sustains in consequence of plaintiff's improperly suing out the writ of garnishment.' The garnishee by answer admitted indebtedness to the appellant for $3,355.69, representing the balance due from him to the appellant on a certain mortgage. On motion of the garnishee an order was entered permitting him to deposit the said sum of $3,355.69 in the registry of the court, which was then done; and the court ordered the said mortgage was thereby satisfied.
A default judgment was entered against the plaintiff-appellant on the counterclaim, as a sanction for her failure to answer interrogatories. Thereby judgment was granted in favor of the counterclaimant Lichtman against the appellant for $3,461.64; the clerk was ordered to pay to Lichtman as partial satisfaction of the judgment the amount of $3,355.69 which had been deposited in the registry of the court by the garnishee; and the clerk of the court was ordered to return to Lichtman the $7,000 cash garnishment bond he had posted.
Thereafter the appellant moved for relief from the judgment, under Rule 1.540 FRCP, 31 F.S.A., based on a provision of her property settlement agreement by which the items claimed by the counterclaimant appeared to have been released. The trial court denied the appellant's motion. On her appeal therefrom this court reversed the order denying relief from the judgment (285 So.2d 632). Mandate thereon was filed in the circuit court on December 13, 1973.
The appellant filed two motions for the counterclaimant to be required to make restitution, following the reversal and remand. One was a motion to require that the garnishment bond be reinstated by the appellee. The...
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