Metcalf v. Langston

296 So. 2d 81
CourtDistrict Court of Appeal of Florida
DecidedJune 18, 1974
DocketV-144
StatusPublished
Cited by28 cases

This text of 296 So. 2d 81 (Metcalf v. Langston) 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
Metcalf v. Langston, 296 So. 2d 81 (Fla. Ct. App. 1974).

Opinion

296 So.2d 81 (1974)

Danny Ray METCALF et al., Appellants,
v.
Betty M. LANGSTON and Claude Langston, Jr., Appellees.

No. V-144.

District Court of Appeal of Florida, First District.

June 18, 1974.

E. Harper Field, of Keen, O'Kelley & Spitz, Tallahassee, for appellants.

James W. Grimsley, of Smith, Tolton, Grimsley & Barron, Fort Walton Beach, Stanley Bruce Powell, of Douglass & Powell, and William F. Daniel, of Cotten, Shivers, Gwynn & Daniel, Tallahassee, for appellees.

BOYER, Acting Chief Judge.

We have for review an order of the Circuit Court denying a motion to vacate and set aside a default entered against Southern Farm Bureau Casualty Insurance Company, appellant.

In State Bank of Eau Gallie v. Raymond, 1931, 103 Fla. 649, 138 So. 40, the Supreme Court of Florida, citing and quoting from Benedict v. W.T. Hadlow Co., 52 Fla. 188, 42 So. 239, said:

"`Whether a default properly entered should be set aside is for the determination *82 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.'" (138 So. at page 41)

Reversing the trial court the Supreme Court further said:

"Where a default has been entered and a timely application is made to set aside the default and permit a plea or answer on the merits to be filed, and such plea or answer discloses upon its face a good and meritorious defense, as a general rule, if there be any reasonable doubt in the matter, it should be resolved in favor of granting the application and allowing a trial upon the merits of the case. 15 R.C.L. 721, § 175" (138 So. at page 43)

Probably the most often cited case relative to vacating defaults is Coggin v. Barfield, 1942, 150 Fla. 551, 8 So.2d 9, wherein the Supreme Court of Florida said:

"Authority for the vacation of a default `for good cause shown' and to allow the defendants to plead, or even demur, is found in Section 4287, C.G.L. 1927. It is the rule that the opening of judgments is a matter of judicial discretion and `in a case of reasonable doubt, where there has been no trial upon the merits, this discretion is usually exercised in favor of granting the application so as to permit a determination of the controversy upon the merits.' 31 Am.Jur., Judgments, Section 717. As it is expressed in Florida Common Law Practice (Crandall) Section 54, `the courts are reasonably liberal in granting motions to set aside defaults.' As long ago as 1863, Waterson v. Seat and Crawford, 10 Fla. 326, 331, this court announced the `tendency of the Courts of the present age to stand less upon strict rules of practice than formerly, and to keep the door a long time open to a defendant who seems to be honestly striving to get in what he believes to be a good defense.' Even more liberal construction in favor of the defendant was given in Russ v. Gilbert, 19 Fla. 54, 57, where it was written that it would be gross abuse of discretion not to allow a defendant to present his defense if he had a meritorious one, was innocent of `culpable negligence' and willing to plead and to `go to trial without delay.'
"The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impending the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.
"There seems to have been no occasion for the procedure followed in order to save the plaintiff from any dilatory tactics by the defendant. The plea was one placing the cause at issue and it was known to be of that character when the default judgment was entered. The clerk and the attorneys for the plaintiff were aware, too, that the pleading would be filed in the correct court as soon as it could reach there by mail. The record is free of any indication that an immediate trial court not have been held." (8 So.2d at page 11)

Of more recent vintage is North Shore Hospital, Inc. v. Barber, Sup.Ct.Fla. 1962, 143 So.2d 849. In that case default was entered on March 10, 1960 and a motion to set aside the default was filed March 15. Accompanying the motion was an affidavit wherein it was alleged that the complaint had been served on the president of the hospital who turned it over to the administrative offices of the hospital for transmission to the insurance carrier. The administrative office, through inadvertence, misplaced the complaint, as the result of which it was not transmitted to the insurance carrier. This mistake was not discovered until March 14, 1960, whereupon the insurance company was immediately notified *83 and counsel engaged to defend the action. The trial court granted the motion to set aside the default, which order was reversed on appeal to the Third District Court of Appeal, that court holding that the petitioner's motion to vacate together with the accompanying affidavit failed to disclose sufficient good cause to set aside the default inasmuch as the inadvertence of the hospital staff did not constitute excusable neglect. The Supreme Court reversed the District Court of Appeal, citing each of the cases hereinabove mentioned (and others), saying:

"In the Waterson case, the defendant had moved to set aside a default decree entered against him, asserting by affidavit that he had placed the complaint in the hands of his attorneys, who, for reasons unknown to him, never filed an answer. The Circuit Court denied the motion and this court reversed, holding that the defendant was not guilty of culpable negligence. In a headnote by the court, the following rule was laid down:
`Whether a default should be opened, must depend on all the facts and circumstances connected with the case. If the party be guilty of Gross negligence, the default will not be opened.' (Emphasis supplied.)
"The court also stated that `* * * it is the tendency of the courts of the present age to stand less upon strict rules of practice than formerly, and to keep the door a long time open to a defendant who seems to be honestly striving to get in what he believes to be a good defense.' Those lines were penned in 1863. When they are compared with the decision of the District Court herein, It gives cause to wonder how much progress we have made in the last hundred years toward liberalizing rules of procedure so as to achieve substantial justice." (1943 So.2d at pages 853 and 854)

This Court, in Florida Investment Enterprises, Inc. v. Kentucky Co., Fla.App. (1st) 1964, 160 So.2d 733, stated that the exact circumstances which might constitute excusable neglect, mistake or inadvertence, allowing a default to be set aside, are not precisely defined but depend upon all factors of the case; but that the general rule is that relief from default may be granted within the sound discretion of the trial court upon a showing of existence of meritorious defense and legal excuse for failure to comply with the rules.

We now turn to the facts in the case sub judice to determine how they square with the rules announced in the above cited cases.

The plaintiffs below, appellees here, brought suit in the Circuit Court of Wakulla County against Danny Ray Metcalf and other individual defendants alleging injuries sustained in an automobile accident resulting from the defendants' negligence.

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296 So. 2d 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metcalf-v-langston-fladistctapp-1974.