Sherman v. Weintraub

132 So. 2d 421, 1961 Fla. App. LEXIS 2503

• Court: District Court of Appeal of Florida
• Decided: July 31, 1961
• Docket: No. 60-556
• Status: Published

Opinion

PER CURIAM.

The defendant appeals a summary final judgment for plaintiff. The action was to recover for personal services rendered. It is urged that (a) there was a genuine issue as to material facts, and (b) the trial judge erred in considering an affidavit of plaintiff served three days before the time fixed for the hearing.

The appellee as movant for summary judgment timely served affidavits sufficient to establish each element of his case. The appellant attempted to reinforce his denial of liability by an affidavit which did no more than the answer had done, i. e., denied liability as a conclusion of law. This affidavit was insufficient to raise a genuine issue as to a material fact because rule 1.36(e), Florida Rules of Civil Procedure, 30 F.S.A., requires: “Supporting and opposing affidavits * * * shall set forth such facts as would be admissible in evidence * *

Inasmuch as the plaintiff would have been clearly entitled to a judgment without the affidavit which was not timely filed, it was not reversible error to consider the unnecessary affidavit improperly served •contrary to the rules.

Affirmed.