State Bank of Eau Gallie v. Raymond

• Decision Date: 23 November 1931
• Parties: STATE BANK OF EAU GALLIE et al. v. RAYMOND et ux.
• Court: Florida Supreme Court

138 So. 40

103 Fla. 649

STATE BANK OF EAU GALLIE et al. v. RAYMOND et ux.

Florida Supreme Court

November 23, 1931

Commissioners' Decision.

Error to Circuit Court, Brevard County; W. W. Wright, Judge.

Action by J. L. Raymond and wife against the State Bank of Eau Gallie and L. W. Smith, as receiver of such bank. To review an order denying defendants' motion to set aside default judgment against them, defendants bring error.

Reversed.

COUNSEL

Shepard & Wahl, of Cocoa, for plaintiffs in error.

Hull Landis & Whitehair, of Deland, for defendants in error.

OPINION

ANDREWS C.

This case is here upon writ of error to the circuit court of Brevard county, based upon a final judgment entered pursuant to the entry of a default. The main question presented for consideration is whether or not the trial court committed reversible error in denying the motion of defendants to set aside the default entered against them.

The declaration was filed December 20, 1928, and a default was entered against defendants on January 8, 1929; and on January 29, 1929, the motion to vacate and set aside the default with supporting affidavits setting up the grounds of defense were filed. They were thus filed before the final judgment had been entered, and within the sixty days allowed by section 4287, C. G. L. 1927, in actions at law.

A hearing was had before the court, and the testimony was confined exclusively to the question as to the reasons given by defendant for not filing the appearance to law action No. 1879; it was shown that appearance in law case No. 1880 between the same parties was duly filed, and that they are companion cases brought at the same time, and grew out of practically the same transaction.

On February 2, 1929, an order was entered overruling the motion of defendant to vacate the default, and a final judgment was thereupon entered upon proof of claim; and another order was entered on April 14, 1929, directing the receiver to certify the judgment claim to the state comptroller. A motion was made by defendant to set aside final judgment, which was denied, and writ of error was taken to this court.

The controlling question presented here for review is whether or not the trial judge transcended his judicial discretion in refusing to vacate the default upon the motion, records, and facts submitted upon that question.

The general rule in this state, which is fairly well defined, is that in moving to vacate a default the defendant should at least present (1) facts reasonably excusing the failure to appear, (2) show by plea or affidavit or otherwise, facts which constitute a good defense to the merits of the case set up by the declaration, (3) and offer to go to trial at once upon a material issue. Morgan v. Marshall, 78 Fla. 59, 82 So. 609; Benedict v. W. T. Hadlow Co., 52 Fla. 188, 42 So. 239, 241. The latter case further states the principle that:

'Whether a default properly entered should be set aside is for the determination of the court in the exercise of a sound judicial discretion, upon a consideration of all the facts and circumstances of the particular case, which would show the good cause required by the statute.'

The 'affidavit of facts' presented in support of the motion to set aside the default in the above case stated that 'through inadvertence she did not retain an attorney to represent said suit and enter her appearance,' and that there was no claim that she had retained or supposed she had retained any attorney before or after the service of summons on her and before default was entered, and that 'no attempt is made to justify or to explain the admitted inadvertence, and as a consequence the defendant has not made a showing of the good cause required by the statute sufficient to disclose a gross abuse of judicial discretion in denying the motion to set aside the default.'

In the instant case, defendants have undertaken to explain the inadvertence and misapprehension of defendant receiver which he testifies was largely caused by the wrong service made upon the receiver's wife, and the fact that summons in two suits between the same parties were being served at the same time. Under all the circumstances, as shown by the motion to vacate the default, and the evidence taken in support thereof, it cannot be reasonably said that they exhibit gross negligence on the part of the receiver or his counsel. The undisputed evidence as showing the reasons for the failure to file the appearance in case No. 1879 are such as may cause a reasonably prudent person to become confused; especially coming as a consequence of closing a bank under the financial condition of this state in 1928.

There can be no question that the general rule is that an application or motion to set aside a default is in the sound discretion of the trial court under section 4287, C. G. L. 1927, which provides that 'The court may, for good cause shown' set aside a default and allow the defendant to demur or plead, when the motion is filed within 60 days from the entry or such default. Even when the sworn testimony as to the facts are transcribed and presented with the pleas and affidavit of facts to this court for review, as in the instant case, a presumption must nevertheless be indulged in favor of the discretion of the trial court; but such ruling does not necessarily become conclusive, as this discretion is the subject of review on appeal. Tidwell v. Witherspoon, 18 Fla. 282; 15 R. C. L. 720, § 174.

The affidavit of facts constituting the defense, filed by defendant L. W. Smith as receiver at the time of filing motion to vacate the default, states, in substance, that: The State Bank of Eau Gallie on November 12, 1926, increased its capital stock, and that plaintiff, J. L Raymond, subscribed for 100 shares at $120 per share (attaching copy of the subscription signed by him); that the accounts of plaintiffs, J. L. Raymond and Lula E. Raymond, his wife, were maintained in the bank jointly or in the name of the Service Garage, and that both accounts were 'handled exclusively under the direction of both plaintiffs by J. L. Raymond'; that on January 21, 1927, J. L. Raymond directed that a checking account in the name of the Service Garage in the amount of $1,502.47 be transferred from the Service Garage account to the savings account of J. L. Raymond and Lula E. Raymond, his wife, for the purpose of taking care of a check which he was giving in payment of the stock aforesaid; that 'said check was authorized by the said J. L. Raymond to be signed by G. E. Spires,' who was then the cashier of the said bank, and the same was so signed January 22, 1927, and charged against the plaintiff's account (a copy of the deposit slip and check being attached as exhibits); that on February 10, 1927, said J. L. Raymond received the certificates of stock for 100 shares as per his subscription to said stock, and receipted for same in his name (copies being attached)...