GENERAL FINANCE CORPORATION OF FLORIDA, A DELAWARE CORPORATION, APPELLANT,
v.
NORTHSIDE BANK OF MIAMI, APPELLEE
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General Finance Corporation appealed the trial court's order setting aside a default judgment and writ of scire facias against Northside Bank of Miami as garnishee. The appellate court affirmed, holding that proper service of process is essential to due process and that the default judgment was correctly set aside where the garnishee lacked notice of the initial writ of garnishment.
The court held that the default judgment and writ of scire facias were properly set aside because proper notice of impending proceedings is essential to due process of law, and the garnishee had no opportunity to be heard on the merits where it lacked notice of the garnishment writ until after the answer period had expired.
“Based upon the well recognized and established principal that notice, of impending proceedings is essential to due process of law”
Establishes the fundamental constitutional principle underlying the trial court's decision to set aside the default judgment.
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Join FLexlaw to unlock all legal intelligenceGeneral Finance Corporation served a Writ of Garnishment on Northside Bank of Miami on July 21, 1967, but served it upon an inferior officer without p…
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This is an appeal by plaintiff below from an order setting aside a default judgment and writ of scire facias against appellee-garnishee. The order appealed states:
“1. It is the finding of this Court that the Plaintiff, GENERAL FINANCE CORPORATION OF FLORIDA, a Delaware corporation, served a Writ of Garnishment upon NORTHSIDE BANK OF MIAMI, Garnishee, on the 21st day of July, 1967. The said Garnishment was served upon an inferior officer without the Sheriff’s return showing the absence of superior officers from the County of Dade, State of Florida; that said inferi- or officer was not authorized to accept service, and failed to forward it to Bank’s counsel for answer, all of which was contrary to instructions given by superior officers at a prior time.
“2. It is a further finding of fact that on the 25th day of August, 1967, the Plaintiff herein obtained a Judgment by default, and on the 28th day of August, 1967, the Clerk of the above Court issued a Writ of Scire Facias, which was served *918upon the Garnishee herein on the 29th day of August, 1967; that said Writ of Scire Facias directed a response from the Garnishee within ten (10) days from service thereof, and that upon the same day of service of said Writ of Scire Facias, the Garnishee filed its Motion to Abate, and to Set Aside Default and Judgment, being heard this date.
“3. Based upon the well recognized and established principal that notice, of impending proceedings is essential to due process of law, and based upon uncon-tradicted testimony that the bank had no notice of the Writ of Garnishment until after the period of time in which to answer had expired, although said lack of notice was through the neglect of their own employee, and further, based upon the fact that the Garnishee has not had an opportunity to be heard upon the merits of its defense and/or claim, as the case may be, and based upon the case of Northshore Hospital, Inc. vs. Barber [Fla.], 143 So.2d, 849, and the case of Terrazzo and Marble" Supply Co. vs. Columbia Bank of Ybor City, Florida, (Fla.App.) 173 So.2d 475, and other cases submitted in argument by counsel, Plaintiff’s Motion to Strike the Motion of the Garnishee be, and the same is hereby denied, and the Garnishee’s Motion to Abate this cause for lack of Jurisdiction of the person be, and the same is hereby granted, and it is further
“ORDERED and ADJUDGED that the Default and Judgment entered in the above cause against NORTHSIDE BANK OF MIAMI and the Writ of Scire Facias be, and the same are set aside and of no further effect or force.”
We have carefully considered the points on appeal in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated. F. W. Dodge Co. Division of McGraw-Hill, Inc. v. Southern Industrial Savings Bank, Fla.App.1968, 207 So.2d 516.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Imperial Indus., Inc. v. Moore Pipe & Sprinkler Co., 261 So. 2d 540 (Fla. 3d DCA 1972)…he trial court. See Rule 1.540(b), R.C.P., 31 F.S.A. Cf. North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So. 2d 849; Jordan v. Jordan, Fla.App.1971, 243 So. 2d 607; General Finance Corporation of Florida v. Northside Bank of Miami, Fla.App.1968, 212 So. 2d 917; Gordon v. Vaughan, Fla.App.1967, 193 So. 2d 474; Florida Investment Enterprises, Inc. v. Kentucky Company, Inc., Fla.App. 1964, 160 So. 2d 733. The policy of the courts of Florida in setting aside defaults in order to permit a trial upon the meri…
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Renuart-Bailey-Cheely Lumber & Supply Co. v. Hall, 264 So. 2d 84 (Fla. 3d DCA 1972)…he defense of excusable neglect. North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So. 2d 849; Imperial Industries, Inc. v. Moore Pipe and Sprinkler Co., Fla.App.1972, 261 So. 2d 540; General Finance Corp. v. Northside Bank of Miami, Fla.App.1968, 212 So. 2d 917. By this action no prejudice will be worked against any party. Reversed and remanded.…
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Rivera v. Southland Painting Corp., Inc., 478 So. 2d 892 (Fla. 3d DCA 1985)…s discretion in such matters. See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Florida Aviation Academy v. Charter Air Center, Inc., 449 So. 2d 350 (Fla. 1st DCA 1984); General Finance Corp. of Florida v. Nortkside Bank of Miami, 212 So. 2d 917 (Fla. 3d DCA 1968). Affirmed.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Duff v. State, 173 So. 2d 475 (Fla. 2d DCA 1965)
- F. W. Dodge Co. DIV. OF McGRAW-Hill, Inc. v. S. Indus. Sav. Bank, 207 So. 2d 516 (Fla. 3d DCA 1968)