Harth v. Margaretten & Co.

District Court of Appeal of Florida

Harth v. Margaretten & Co.

513 So. 2d 1083, 12 Fla. L. Weekly 2187, 1987 Fla. App. LEXIS 10160

District Court of Appeal of Florida·Decided September 9, 1987·No. No. 4-86-2599·Published·Cited by 1 cases

Opinion

DOWNEY, Judge.

Appellee, Margaretten & Company, Inc., a nonresident corporation authorized to do business in Florida, filed this suit to foreclose a mortgage on certain real property located in Broward County, Florida. When appellants, Carl and Laura Harth, failed to plead or otherwise defend the action within the time provided by the rules of civil procedure, appellee moved for a default. Pri- or to a hearing on said motion, the Harths filed a notice to post a nonresident cost bond pursuant to section 57.011, Florida Statutes (1985), and a motion to dismiss the complaint for failure of appellee to comply with the statute. Nevertheless, the motion for default was heard and granted. From that order appellants have perfected this non-final appeal.

We reverse the order appealed from on authority of Sister Donut, Inc. v. Cameron-Brown Company, 495 So.2d 772 (Fla. 4th DCA 1986), and remand the cause for further consideration. If the trial court finds the motion lacks substantive merit, appellants should be given an opportunity to file an answer.

REVERSED and REMANDED, with directions. GLICKSTEIN and WALDEN, JJ., concur.

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DOWNEY, Judge.

Appellee, Margaretten & Company, Inc., a nonresident corporation authorized to do business in Florida, filed this suit to foreclose a mortgage on certain real property located in Broward County, Florida. When appellants, Carl and Laura Harth, failed to plead or otherwise defend the action within the time provided by the rules of civil procedure, appellee moved for a default. Pri- or to a hearing on said motion, the Harths filed a notice to post a nonresident cost bond pursuant to section 57.011, Florida Statutes (1985), and a motion to dismiss the complaint for failure of appellee to comply with the statute. Nevertheless, the motion for default was heard and granted. From that order appellants have perfected this non-final appeal.

We reverse the order appealed from on authority of Sister Donut, Inc. v. Cameron-Brown Company, 495 So.2d 772 (Fla. 4th DCA 1986), and remand the cause for further consideration. If the trial court finds the motion lacks substantive merit, appellants should be given an opportunity to file an answer.

REVERSED and REMANDED, with directions. GLICKSTEIN and WALDEN, JJ., concur.

Harth v. Margaretten & Co., 513 So. 2d 1083, 12 Fla. L. Weekly 2187, 1987 Fla. App. LEXIS 10160 (Fla. Ct. App. 1987).

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