172 So. 2d 272 | Fla. Dist. Ct. App. | 1965
The petitioner seeks by certiorari to quash an order of the circuit court vacating and setting aside a default judgment entered in a common law action.
The petitioner, as administrator of the estate of Robert Lee Sugar, deceased, sued the respondents Max L. Blek, as administrator of the estate of Arthur Freedman, deceased, and Caribbean Cargoes, Inc., a Florida corporation, for the alleged negligent death of Robert Lee Sugar, a co-pilot of an aircraft owned by the respondent Caribbean Cargoes, Inc., and piloted by the deceased, Arthur Freedman. Process and a copy of the complaint for damages were personally served upon the respondent Max L. Blek, as administrator of the estate of Arthur Freedman, deceased, on January 3, 1964. When Max L. Blek, as administrator, failed to answer or plead to the complaint, a default judgment was entered against him on January 31, 1964. On June 11, 1964, the trial court set the cause of action for trial during the week of September 21, 1964. On August 21, 1964, the petitioner served upon the respondent Max L. Blek a copy of a notice of the taking of the deposition of a witness. On September 17, 1964, Dora Freedman, who described herself as “widow and sole beneficiary of the estate of Arthur Freedman, deceased,” moved the court to remove the cause from the trial calendar. In her motion, Dora Freedman admitted the personal service of a copy of the summons and
The petitioner contends that the trial court grossly abused its discretion in vacating the default judgment and relies in part on the decision in the case of North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849, wherein the Supreme Court of Florida stated in substance that if a party were guilty of gross neglect a default would not be opened. On the other hand, the respondent contends that since it was her predecessor, administrator Max L. Blek’s dereliction which occasioned the entry of the default, she should be relieved of the effect of such default on the showing that she had moved promptly upon the removal of Max Blek and the substitution of herself as administratrix.
The North Shore Hospital case was decided before the effective date of an amendment to Rule 1.38 of the Florida Rules of Civil Procedure, 30 F.S.A. Subsection (b) which was added to Rule 1.38, became effective July 1,1962, and provides in part that. “ * * * the court may relieve a party or his legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect * [Emphasis supplied]. We understand the-addition of subsection (b) to Rule 1.38 was. intended to liberalize the setting aside of orders inadvertently entered or orders which were occasioned by mistake or excusable neglect, but we do not understand that the-rule was so liberalized as to permit a defaulting defendant, without any excusable-reason, to continue in his default for a period of more than ten months. It is true, as. the respondent Dora Freedman argues, that the neglect of her predecessor might ultimately be visited upon her in the event the default was not set aside. In this connection we observe that it was the estate which was served through the personal representative, Mr. Blek, and such default, neglect, or defalcation of which he might be guilty is a factor over which the county judge’s court, is not without jurisdiction to remedy. There-was no duty on the part of the petitioners, here to notify Dora Freedman of the pend-ency of the action or to serve her with proc
Concluding as we have that the trial judge’s order vacating the default judgment was a gross abuse of discretion, it follows that the same should be and is hereby •quashed.