Martinez v. Kanitz

District Court of Appeal of Florida

Martinez v. Kanitz

254 So. 2d 405, 1971 Fla. App. LEXIS 5756

CourtDistrict Court of Appeal of Florida

DecidedNovember 9, 1971

DocketNo. 71-417

StatusPublished

This text of 254 So. 2d 405 (Martinez v. Kanitz) 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.

Bluebook

Martinez v. Kanitz, 254 So. 2d 405, 1971 Fla. App. LEXIS 5756 (Fla. Ct. App. 1971).

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Opinion

PER CURIAM.

Defendants take this interlocutory appeal from an order which denied their Supplemental Motion to set aside a default. See Rule 4.2(a), F.A.R., 32 F.S.A. No final judgment has ever been rendered in this case.

The individual defendant Martinez was served on December 7th and the defendant insurance company on December 9, 1970. They had 20 days thereafter in which to plead or answer. Plaintiffs filed a motion for default on December 29, 1970 and default was entered against Martinez on December 29, 1970, and against the insurance company on January 4, 1970.

Defendants filed an answer on January 21, 1971 and denied negligence and other matters and affirmatively alleged contributory negligence on the part of the injured plaintiff and that the negligence of a third party caused the alleged injuries or damages. At the same time defendants filed a motion to set aside the default and later filed a supplemental motion to set aside the default. These motions set forth that plaintiffs’ pleadings were mailed to the de[406]*406fendant’s home office in Iowa and from there remailed to the local office in Miami, Florida. The attachments to the motions indicate the Miami office mailed the complaints to its attorney on December 21, 1970. This was in time for an answer or pleadings to be properly filed by defendants. These pleadings were not delivered to the attorney for the defendants until January 6, 1971, as evidenced by his receipt for certified mail. By the time the pleadings were delivered to defendants’ local attorney the defaults had been entered. Defendants claim they suffered late delivery of mail due to the Christmas holidays; that they were not negligent, careless or inadvertent; that they have a meritorious defense and are ready for an early and speedy trial. Cf. Miami Dolphins, Ltd. v. Florida Dept. of Commerce, Fla.App.1971, 252 So.2d 396.

This case is governed, in our opinion, by North Shore Hospital, Inc. v. Barber, Fla. 1962, 143 So.2d 849; and is accordingly reversed and remanded with instructions to set aside the default heretofore entered and to proceed accordingly.

It is so ordered.

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PER CURIAM.

Defendants take this interlocutory appeal from an order which denied their Supplemental Motion to set aside a default. See Rule 4.2(a), F.A.R., 32 F.S.A. No final judgment has ever been rendered in this case.

The individual defendant Martinez was served on December 7th and the defendant insurance company on December 9, 1970. They had 20 days thereafter in which to plead or answer. Plaintiffs filed a motion for default on December 29, 1970 and default was entered against Martinez on December 29, 1970, and against the insurance company on January 4, 1970.

Defendants filed an answer on January 21, 1971 and denied negligence and other matters and affirmatively alleged contributory negligence on the part of the injured plaintiff and that the negligence of a third party caused the alleged injuries or damages. At the same time defendants filed a motion to set aside the default and later filed a supplemental motion to set aside the default. These motions set forth that plaintiffs’ pleadings were mailed to the de[406]*406fendant’s home office in Iowa and from there remailed to the local office in Miami, Florida. The attachments to the motions indicate the Miami office mailed the complaints to its attorney on December 21, 1970. This was in time for an answer or pleadings to be properly filed by defendants. These pleadings were not delivered to the attorney for the defendants until January 6, 1971, as evidenced by his receipt for certified mail. By the time the pleadings were delivered to defendants’ local attorney the defaults had been entered. Defendants claim they suffered late delivery of mail due to the Christmas holidays; that they were not negligent, careless or inadvertent; that they have a meritorious defense and are ready for an early and speedy trial. Cf. Miami Dolphins, Ltd. v. Florida Dept. of Commerce, Fla.App.1971, 252 So.2d 396.

This case is governed, in our opinion, by North Shore Hospital, Inc. v. Barber, Fla. 1962, 143 So.2d 849; and is accordingly reversed and remanded with instructions to set aside the default heretofore entered and to proceed accordingly.

It is so ordered.

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254 So. 2d 405, 1971 Fla. App. LEXIS 5756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-kanitz-fladistctapp-1971.

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