Pomars v. Spirt

Palm Beach County Circuit Court

Pomars v. Spirt

40 Fla. Supp. 16

CourtCircuit Court of the 15th Judicial Circuit of Florida, Palm Beach County

DecidedJanuary 3, 1974

DocketNo. 71-C-2694

StatusPublished

This text of 40 Fla. Supp. 16 (Pomars v. Spirt) is published on Counsel Stack Legal Research, covering Circuit Court of the 15th Judicial Circuit of Florida, Palm Beach County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pomars v. Spirt, 40 Fla. Supp. 16 (Fla. Super. Ct. 1974).

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Opinion

LEWIS KAPNER, Circuit Judge.

This is a complaint by the estate of Harold Dwork, deceased, against Irene Spirt, in which the plaintiff executor claims that he was required to make good a promissory note which was executed by defendant, and signed by the decedent as an accommodating party.

Plaintiff has attached the note in question to his complaint and has made certain requests for admissions with respect to this note. Further, plaintiff has submitted certain interrogatories with respect to this note and has deposed defendant with respect to same. (However, the deposition has not been offered into evidence.)

By plaintiff’s actions, above described, he has in effect waived the Dead Man’s Statute, §90.05, Florida Statutes, and defendant may testify as to a transaction or communication with the deceased with respect to the note in question. See Small v. Shure, 94 So.2d 371; Sessions v. Summers, 177 So.2d 720; Herring v. Eiland, 81 So.2d 645; and Booth v. Cureton, 81 So.2d 662.

When defendant’s testimony or affidavit is thus considered, an issue of fact exists. Plaintiff’s motion for a summary judgment is therefore denied.

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LEWIS KAPNER, Circuit Judge.

This is a complaint by the estate of Harold Dwork, deceased, against Irene Spirt, in which the plaintiff executor claims that he was required to make good a promissory note which was executed by defendant, and signed by the decedent as an accommodating party.

Plaintiff has attached the note in question to his complaint and has made certain requests for admissions with respect to this note. Further, plaintiff has submitted certain interrogatories with respect to this note and has deposed defendant with respect to same. (However, the deposition has not been offered into evidence.)

By plaintiff’s actions, above described, he has in effect waived the Dead Man’s Statute, §90.05, Florida Statutes, and defendant may testify as to a transaction or communication with the deceased with respect to the note in question. See Small v. Shure, 94 So.2d 371; Sessions v. Summers, 177 So.2d 720; Herring v. Eiland, 81 So.2d 645; and Booth v. Cureton, 81 So.2d 662.

When defendant’s testimony or affidavit is thus considered, an issue of fact exists. Plaintiff’s motion for a summary judgment is therefore denied.

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Bluebook (online)

40 Fla. Supp. 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pomars-v-spirt-flacirct15pal-1974.

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