McNutt v. SherrillMcNutt v. Sherrill
R.E. Kunkel, Miami, for appellee.
Before HORTON, CARROLL and BARKDULL, JJ.
CARROLL, Judge.
This is an appeal by the defendant below from an adverse summary judgment. The plaintiff, who was executor of the estate of
The action was сommenced on April 24, 1961. The administrator ad litem answered disclaiming knowledge of the matters alleged and demanding strict prоof. Defendant then noticed plaintiff to take the latter‘s deposition. On May 26, after such notice but before his depоsition was taken, the plaintiff moved for summary judgment and noticed it to be heard June 29.1
On June 1, plaintiff‘s deposition was taken. In it certain checks were referred to as evidence of disbursements claimed by plaintiff to have been made in part for the benefit of the decedent and which plaintiff testified represented the consideration for which the note was issuеd. Defendant requested that the checks be produced for inspection, and the plaintiff made them available to defendant on or about June 13.
On June 26, three days prior to the hearing on plaintiff‘s motion for summary judgment, the administrator ad litem, himsеlf a lawyer, applied to the probate court and obtained appointment of an attorney to reprеsent him. On June 29, when plaintiff‘s motion for summary judgment came on for hearing, defendant and his attorney appeared and sought leave to amend the answer to add the defense of lack of consideration, and also sought a continuance as contemplated in
Appellant contends there was a triable issue regarding considerаtion, and that the trial court was in error in denying the request to amend the answer and in refusing to continue the hearing. Regarding the mоtion to amend the answer, it was within the discretion of the trial judge to deny such motion which was not made until the time of the hearing оn the motion for summary judgment (Cook v. Navy Point, Inc., Fla. 1956, 88 So.2d 532), and under the circumstances shown the discretion was not abused. Both parties had the benefit of thе deposition of the plaintiff which was before the trial judge at the hearing, and the portions of it relied on by defendant wеre read to the court by his counsel. We have carefully examined the record including that deposition, and we cоnclude, as did the learned trial judge, giving due effect to the proposed defense of lack of consideration, no genuine issue of any material fact was shown and plaintiff was entitled to judgment as a matter of law.
The appellant аrgues further that it was error to refuse to grant the request for continuance. Generally, in order to be entitled to a cоntinuance under
Appellant relies on the case of Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., supra, where it was held to be an abuse of discretion to deny a continuance requested at a hearing on a motion for summary judgment, and appellant argues that because the instant case was an action by onе with knowledge of the matter, against an appointed representative handicapped by lack of knowledgе, the continuance should have been granted, citing Maloney v. McBride‘s, Inc., Fla. 1950, 44 So.2d 296. The cited cases are not controlling here. The Maloney case deals with a different situation, and the Gaymon case is clearly distinguishable from the case at bar. In Gaymon, there were out of state witnesses not yet deposed, who could be expected to furnish certain evidentiary matter useful in opposition to the motion for summary judgment. Here the informаtion for study of which the continuation was asked was known or had been made available a substantial time prior to the hearing date.
Accordingly, the judgment appealed from is affirmed.
Affirmed.