CITY OF MIAMI BEACH, A FLORIDA MUNICIPAL CORPORATION, APPELLANT,
v.
JAMES KENNETH BOYDEN AND MARYLAND NATIONAL INSURANCE COMPANY, A MARYLAND CORPORATION, APPELLEES
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The City of Miami Beach appealed the vacation of a $5,000 appearance bond that was properly estreated when the defendant failed to appear. The court reversed, holding that while a surety may use Rule 1.540(b) to challenge an estreature judgment, the surety failed to present sufficient equitable grounds to set aside the judgment.
While a surety may invoke Rule 1.540(b) for equitable relief from an estreature judgment, the surety's showing in this case was insufficient. The court reversed the trial court's order vacating the estreature judgment because the record fell far short of what would be necessary to authorize setting aside a judgment of estreature.
[1] A surety may seek relief from a judgment of estreature under Rule 1.540(b), Florida Rules of Civil Procedure, even if statutory time limits for relief have passed.
[2] A trial court may set aside a judgment of estreature under Rule 1.540(b), Florida Rules of Civil Procedure, only upon a showing of sufficient equitable grounds.
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Join FLexlaw to unlock all legal intelligence“notwithstanding the fact that the surety failed to comply with the provisions of § 903.271, Fla.Stat., F.S.A. in seeking relief from the judgment of es-treature, it could avail itself of the provisions of Rule 1.540(b), Florida Rules of Civil Procedure”
Establishes that surety can use Rule 1.540(b) as alternative remedy despite missing statutory deadline
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Join FLexlaw to unlock all legal intelligenceMaryland National Insurance Company posted a $5,000 appearance bond for James Kenneth Boyden in Miami Beach municipal court. When Boyden failed to app…
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Appellant, plaintiff in the trial court, seeks review of an order vacating a final judgment which had estreated an appearance bond in the municipal court.
The record reveals that the appellee corporation had posted a $5,000.00 appearance bond to ensure the appearance of the ap-pellee, Boyden, in the municipal court of Miami Beach on December 18, 1967. When Boyden failed to make his appearance on said date, the trial judge ordered his bond estreated and, pursuant to the provisions of § 903.26, Fla.Stat., F.S.A., this estreature order was filed with the Clerk of the circuit court and an appropriate judgment thereon was ultimately entered in accordance with § 903.27, Fla.Stat., F.S.A. Thereafter, without the fifteen-day period provided for in § 903.271, Fla.Stat., F.S.A., the surety moved to vacate the judgment, which motion 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 order here under review, revoking the estreature and reestablishing the bond.
It is apparent from the record that the surety is unable, even at this date, to produce the body of Boyden to answer to the charges in the municipal court; that he is incarcerated in another jurisdiction, and subject to at least two other charges before he could answer to the charges pending in the municipal court of the appellant. We agree that, notwithstanding the fact that the surety failed to comply with the provisions of § 903.271, Fla.Stat., F.S.A. in seeking relief from the judgment of es-treature, it could avail itself of the provisions of Rule 1.540(b), Florida Rules of Civil Procedure, but that the record in this case falls far short of that which would be necessary to authorize a trial judge to set aside a judgment of estreature entered pursuant to Ch. 903, Fla.Stat., F.S.A. Public Service Mutual Insurance Company v. State, Fla.App.1961, 135 So.2d 777; Florida Insurance Exchange v. State, Fla.App.1965, 178 So.2d 211; 8 C.J.S. Bail § 92 b.
Therefore, we reverse the order here under review and direct the trial court to reinstate the final judgment of estreature.
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Resolute Ins. Co. v. State, 289 So. 2d 456 (Fla. 3d DCA 1974)…with the setting aside of judgment is operative. Therefore, the trial court properly denied appellant’s application for remission of forfeiture. In the interest of consistency, we note, as we have held in City of Miami Beach v. Boyden, Fla.App.1970, 232 So. 2d 429, that notwithstanding the fact that the surety has failed to comply with § 903.27, it may seek relief pursuant to Rule 1.540(b), RCP, 31 F.S.A., when such is applicable. Affirmed. . Minor amendments were enacted in 1971 (Chapter 71-355, § 173, Law…
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S. Am. Fire Ins. Co. v. The State of Fla. for the Use & Benefit of Dade Cnty., 270 So. 2d 374 (Fla. 3d DCA 1972)…of the appellant we find that the record in this case falls short of that which would be necessary to authorize the setting aside of a judgment of estreature entered pursuant to Ch. 903, Fla.Stat., F.S.A. City of Miami Beach v. Boyden, Fla.App.1970, 232 So. 2d 429. Therefore, for the reasons stated and upon the authorities cited, the order appealed from is hereby affirmed. Affirmed. . See: Resolute Insurance Co. v. State, Fla.App.1972, 269 So. 2d 770 and cases cited therein.…
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Allied Fid. Ins. Co. v. State, 499 So. 2d 932 (Fla. 1st DCA 1986)…which a forfeiture may be discharged, for setting aside or reversing a forfeiture judgment, these reasons may be raised on a plenary appeal. Moreover, Resolute Insurance Company v. State, 289 So. 2d 456 (Fla. 3d DCA 1974), and Miami Beach v. Boyden, 232 So. 2d 429 (Fla. 3d DCA 1970), both directly held that a surety may seek [*935] relief pursuant to Fla.R.Civ.P. 1.540(b), when such is applicable, notwithstanding a failure to comply with Section 903.27. Accordingly, we find the trial court erred in failing t…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pub. Serv. Mut. Ins. Co. v. State, 135 So. 2d 777 (Fla. 1st DCA 1961)
- State Fire & Cas. Co. v. State, 88 So. 2d 274 (Fla. 1956)
- Fla. Ins. Exch. v. State, 178 So. 2d 211 (Fla. 1st DCA 1965)
- State v. Frazier, 123 So. 2d 288 (Fla. 3d DCA 1960)
- The State of Fla. for the Use & Benefit of Dade Cnty. v. Moran, 199 So. 2d 136 (Fla. 3d DCA 1967)