Seven-Up Bottling Co. of Miami v. J. N. Rawleigh Co.

District Court of Appeal of Florida

Seven-Up Bottling Co. of Miami v. J. N. Rawleigh Co.

156 So. 2d 180

District Court of Appeal of Florida·Decided August 9, 1963·No. No. 3814·Published·Cited by 2 cases

Opinion

PER CURIAM.

Garnishee, Seven-Up Bottling Company of Miami, Inc., appeals a final judgment of garnishment in the amount of $4,088.60 plus costs and interest in favor of plaintiff, J. N. Rawleigh Company.

The garnishee failed to answer the Writ of Garnishment and default judgment was entered. An oral motion to vacate the default was denied and the garnishee subsequently attempted to raise the defense of no debt in the response to the Writ of Scire Facias.

It is well settled that defenses available to the original Writ of Garnish[181] ment are not available in response to the Writ of Scire Facias. The purpose of the latter writ is to give the party against whom execution is about to issue, notice so that he may urge defenses which have arisen after creation of the original record. See and compare Barrow v. Bailey, 1853, 5 Fla. 9; Gilchrist v. Meacham, 1850, 3 Fla. 219, 234 (two cases); Brown v. Harley, 1848, 2 Fla. 159; 29 Fla.Jur. Scire Facias §2; 3 Fla.Jur. Attachment and Garnishment, §§ 112, 114; Rule 2.12 Rules of Civil Procedure, 31 F.S.A.; Chapter 77 Florida Statutes, F.S.A.

We have carefully considered the other assignments of error urged on appeal and find no error.

Affirmed.

SMITH, C. J., and WHITE and SHANNON, JJ., concur.

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PER CURIAM.

Garnishee, Seven-Up Bottling Company of Miami, Inc., appeals a final judgment of garnishment in the amount of $4,088.60 plus costs and interest in favor of plaintiff, J. N. Rawleigh Company.

The garnishee failed to answer the Writ of Garnishment and default judgment was entered. An oral motion to vacate the default was denied and the garnishee subsequently attempted to raise the defense of no debt in the response to the Writ of Scire Facias.

It is well settled that defenses available to the original Writ of Garnish[181] ment are not available in response to the Writ of Scire Facias. The purpose of the latter writ is to give the party against whom execution is about to issue, notice so that he may urge defenses which have arisen after creation of the original record. See and compare Barrow v. Bailey, 1853, 5 Fla. 9; Gilchrist v. Meacham, 1850, 3 Fla. 219, 234 (two cases); Brown v. Harley, 1848, 2 Fla. 159; 29 Fla.Jur. Scire Facias §2; 3 Fla.Jur. Attachment and Garnishment, §§ 112, 114; Rule 2.12 Rules of Civil Procedure, 31 F.S.A.; Chapter 77 Florida Statutes, F.S.A.

We have carefully considered the other assignments of error urged on appeal and find no error.

Affirmed.

SMITH, C. J., and WHITE and SHANNON, JJ., concur.

Seven-Up Bottling Co. of Miami v. J. N. Rawleigh Co., 156 So. 2d 180 (Fla. Ct. App. 1963).

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