Knight v. Gainer

District Court of Appeal of Florida

Knight v. Gainer

310 So. 2d 58, 1975 Fla. App. LEXIS 13961

CourtDistrict Court of Appeal of Florida

DecidedMarch 31, 1975

DocketNo. X-134

StatusPublished

Cited by2 cases

This text of 310 So. 2d 58 (Knight v. Gainer) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Knight v. Gainer, 310 So. 2d 58, 1975 Fla. App. LEXIS 13961 (Fla. Ct. App. 1975).

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Opinion

PER CURIAM.

By this interlocutory appeal appellant seeks review of a trial court’s denial of a motion to set aside a default. The facts of this case are remarkably similar to those in Metcalf v. Langston, Fla.App. 1st 1974, 296 So.2d 81, cert. dis. Sup.Ct. Fla.1974, 302 So.2d 414, wherein we stated, after dis-, cussing the applicable law that “Were there nothing more to consider we would be constrained to hold that the learned trial judge erred in denying the motion to set aside the default.” However, in that case we affirmed because the appellant had failed to comply with the requisite procedural steps. The record before us sub ju-dice, on the other hand, reveals that the appellant here, defendant below, has not so failed. The affidavit filed in the trial court alleges a meritorious defense, excusable neglect and a willingness to immediately proceed. (See Metcalf v. Langston, supra and North Shore Hospital, Inc. v. Barber, Sup.Ct.Fla.1962, 143 So.2d 849).

On authority of the above mentioned cases, and. the authorities therein cited, we reverse the order here appealed and remand for further proceedings consistent with the authorities herein cited.

It is so ordered.

RAWLS, C. J., and BOYER and Mc-CORD, JJ., concur.

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PER CURIAM.

By this interlocutory appeal appellant seeks review of a trial court’s denial of a motion to set aside a default. The facts of this case are remarkably similar to those in Metcalf v. Langston, Fla.App. 1st 1974, 296 So.2d 81, cert. dis. Sup.Ct. Fla.1974, 302 So.2d 414, wherein we stated, after dis-, cussing the applicable law that “Were there nothing more to consider we would be constrained to hold that the learned trial judge erred in denying the motion to set aside the default.” However, in that case we affirmed because the appellant had failed to comply with the requisite procedural steps. The record before us sub ju-dice, on the other hand, reveals that the appellant here, defendant below, has not so failed. The affidavit filed in the trial court alleges a meritorious defense, excusable neglect and a willingness to immediately proceed. (See Metcalf v. Langston, supra and North Shore Hospital, Inc. v. Barber, Sup.Ct.Fla.1962, 143 So.2d 849).

On authority of the above mentioned cases, and. the authorities therein cited, we reverse the order here appealed and remand for further proceedings consistent with the authorities herein cited.

It is so ordered.

RAWLS, C. J., and BOYER and Mc-CORD, JJ., concur.

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310 So. 2d 58, 1975 Fla. App. LEXIS 13961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knight-v-gainer-fladistctapp-1975.

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