THE STATE OF FLORIDA FOR THE USE AND BENEFIT OF DADE COUNTY, FLORIDA, APPELLANT,
v.
MATHEW K. MORAN AND SUMMIT FIDELITY & SURETY COMPANY, AN OHIO CORPORATION, AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEES
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Florida's appeal challenging a circuit court order that vacated a bond forfeiture judgment against the surety on a bail bond. The court reversed, holding that the surety's motion to vacate was untimely under the controlling statute and that no other basis for relief was demonstrated.
The motion to vacate was untimely under Florida Statute § 903.271, which requires applications to set aside bond forfeiture judgments be made within fifteen days of entry. The court did not determine whether Florida Rules of Civil Procedure Rule 1.38(b) could provide an alternative basis for relief but found no grounds shown on the record that would entitle the surety to relief under that rule either.
“This case is covered by § 903.271, Fla. Stat., F.S.A., which provides that an application to set aside the judgment shall be made within fifteen days from the entry of the judgment.”
Establishes the controlling statutory deadline for motions to vacate bond forfeiture judgments
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Join FLexlaw to unlock all legal intelligenceSummit Fidelity & Surety Company was the surety on a bond for Mathew K. Moran's appearance on a traffic charge in Metropolitan Court of Dade County. M…
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The state, for the use and benefit of Dade County, seeks reversal of an order of the circuit court granting the surety’s motion to vacate final judgment and set aside bond estreature.
Summit Fidelity & Surety Company is the surety on a bond assuring the appearance of Mathew K. Moran for trial on a traffic charge in the Metropolitan Court of Dade County. Moran failed to appear and the bond was estreated by the Metropolitan Court on April 6, 1965. A certificate of bond estreature was filed on November 3, 1965, and judgment of forfeiture was entered by the circuit court on November 12, 1965.
The motion to vacate final judgment and set aside estreature was filed on December 2, 1965, more than fifteen days after the entry of final judgment. The motion was based on the ground that Moran was surrendered to the Metropolitan Dade County Sheriff on May 24, 1965, and subsequently brought to justice. The motion was granted on rehearing by order dated May 13, 1966.
This case is covered by § 903.271, Fla. Stat., F.S.A., which provides that an application to set aside the judgment shall be made within fifteen days from the entry of the judgment.
*137The application to set aside judgment was not timely, and there is no showing that the bond forfeiture proceeding was fatally defective on jurisdictional grounds. Therefore, it was filed too late to entitle it to consideration by the trial judge. State Fire & Casualty Company v. State, Fla. 1956, 88 So.2d 274; State for Use and Benefit of Dade County v. Frazier, Fla.App. 1960, 123 So.2d 288.
The surety contends that § 903.271, supra, is not the only method by which it could seek relief, but that its relief was properly granted under rule 1.38(b) Florida Rules of Civil Procedure, 30 F.S.A.
We make no determination as to the availability vel non of rule 1.38(b), supra, to vacate the final judgment and set aside bond estreature as no reason has been shown on this record which would entitle the surety to relief under rule 1.38(b).
The order setting aside the final judgment is reversed and the cause remanded with directions to reinstate final judgment enforcing the forfeiture.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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City OF Miami Beach v. Boyden, 232 So. 2d 429 (Fla. 3d DCA 1970)…on was denied and properly so. See: State Fire & Casualty Company v. State, Fla. 1956, 88 So. 2d 274; State for Use and Benefit of Dade County v. Frazier, Fla.App.1960, 123 So. 2d 288; State for Use and Benefit of Dade County v. Moran, Fla.App.1967, 199 So. 2d 136. The surety then filed a motion pursuant to Rule 1.540(b), Florida Rules of Civil Procedure, 31 F.S.A., contending that there was an equitable basis to relieve it from the final judgment of estreature. After hearing, the trial judge entered the orde…
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Milton v. State, 268 So. 2d 552 (Fla. 3d DCA 1972)…ied by an affidavit setting forth the facts on which the application was founded. We further find that the record on appeal is insufficient to support the appellants’ contentions. State for the use and benefit of Dade County v. Moran, Fla.App. 1967, 199 So. 2d 136; City of Miami Beach v. Boyden, Fla.App.1970, 232 So. 2d 429; see also: Capitol Indemnity Insurance Company v. State, Fla.1956, 86 So. 2d 156. For the reasons stated the order and judgment appealed is affirmed.…
Authorities Cited
- State Fire & Cas. Co. v. State, 88 So. 2d 274 (Fla. 1956)
- State v. Frazier, 123 So. 2d 288 (Fla. 3d DCA 1960)