Somerville v. Skidmore
| Decision Date | 01 June 1965 |
| Docket Number | No. 64-630,64-630 |
| Citation | 175 So.2d 575 |
| Parties | Nellie Good SOMERVILLE, Appellant, v. John SKIDMORE, d/b/a South Dixie Service and Ruben Prats, Appellees. |
| Court | Florida District Court of Appeals |
Wallace Ruff, So. Miami, for appellant.
W. Emory Daugherty, Jr., Miami Springs, Jerry Larotonda, George L. Combaluzier, Miami, for appellees.
Before CARROLL, HENDRY and SWANN, JJ.
The appellant, defendant below, seeks review of a final judgment of the Civil Court of Record following a verdict rendered in a non-jury trial. The appellee has not filed a brief. The parties will be referred to as in the trial court.
The defendant's automobile ran into plaintiff's service station as the result of a collision with a co-defendant. The plaintiff filed an action to recover for the damages to his service station.
A default and final judgment were entered against defendant. The trial court, on its own motion, subsequently set aside this final judgment on the ground that the proof was not in conformity with the pleadings, but found the default was duly and properly entered. Plaintiff subsequently moved to amend the complaint and defendant moved to vacate the default and for permission to file defensive pleadings.
The court granted plaintiff's petition to amend the complaint as to damages and denied the defendant's motion to set aside the default.
The defendant then filed a cross claim against the co-defendant, which was struck by the court on the co-defendant's motion.
In a non-jury trial at which counsel for defendant appeared and participated, the court found for the plaintiff against appellant-defendant, ordering her to pay the sum of $396.00, together with lawful costs of $28.00, and found the co-defendant not guilty. The defendant in her appeal assigns as error the following:
1. That the court erred in denying motion to set aside the default and allow her to file defensive pleadings.
2. That the court erred in granting co-defendant's motion to strike cross claim.
3. That the court erred in admitting into evidence unsupported verbal statements of plaintiff concerning damages.
4. That the court erred in entering final judgment for plaintiff, as there was no valid evidence before court that the car that caused the damage was owned or operated by defendant.
The general rule is that relief from a default judgment may be granted within the sound discretion of the trial court upon showing of existence of a meritorious defense and legal excuse for failure to comply with rule, but default judgments may not be set aside for part...
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Cowen v. Knott
...for hearing, received confirmation that it would be held as scheduled, yet did not ask for any extension of time. In Somerville v. Skidmore, Fla.App.3d 1965, 175 So.2d 575, the defendant admitted service but claimed that she was without funds to hire an attorney and did nothing, although le......
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Fischer v. Barnett Bank of South Florida, N.A., 87-113
...grossly negligent and inexcusable. Winter Park Arms, Inc. v. Akerman, 199 So.2d 107, 108-09 (Fla. 4th DCA 1967); Somerville v. Skidmore, 175 So.2d 575, 576 (Fla. 3d DCA 1965); see Florida Investment Enters. v. Kentucky Co., 160 So.2d 733, 737 (Fla. 1st DCA Second, the defendants have failed......
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Austin Burke, Inc. v. Vigilant Ins. Co., 65-242
...In the light of the facts recited above, we are unable to hold that the trial judge abused his discretion. Cf., Somerville v. Skidmore, Fla .App.1965, 175 So.2d 575, and Teply v. Key, Fla.App.1963, 158 So.2d Appellant relies upon North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849......
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Steelcase, Inc. v. Office Interiors of Florida, Inc., Case No. 3D05-1877 (Fla. App. 6/14/2006)
...error to allow party to file a cross-claim against co-defendant after a default had been entered against it); Somerville v. Skidmore, 175 So. 2d 575 (Fla. 3d DCA 1965)(affirming refusal to set aside default, and striking of defendant's cross-claim against co-defendant). By virtue of its def......