Opinion
November 14, 1950. Rehearing Denied December 20, 1950.
Appeal from the Circuit Court for Lake County, T.G. Futch, J.
Leroy B. Giles, John G. Baker, B.C. Thornal, and Baker Thornal, all of Orlando, for appellant.
C. Walborn Daniel Leesburg, for appellee.
Lake County Citrus Sales, Inc., on March 2, 1950, filed its complaint against the Atlantic Coast Line Railroad Company. On March 11, 1950, the defendant filed a motion to dismiss, the grounds of the motion being that the complaint failed to state a cause of action or assert a claim upon which relief could be granted and that the complaint showed on its face that the court did not have jurisdiction of the subject matter of the cause. With the motion to dismiss the defendant filed a motion for a more definite statement of the cause. On April 3, 1950, plaintiff moved for the entry of a default judgment because of the failure of the defendant to set its motions down for hearing and disposition before the court or to file an answer to the complaint within 20 days after the service of summons. On the same day the trial court granted the motion and entered a default judgment against the defendant. Two days later, on motion of the plaintiff, the court entered a final judgment against the defendant. Both judgments were entered without notice to the defendant.
On September 15, 1950, the defendant learned for the first time that final judgment had been entered against it. The defendant thereupon filed its motion to stay execution and to vacate the default and final judgments, on the ground that the judgments had been entered without notice and while there remained pending in the cause a valid and subsisting motion to dismiss the complaint and a motion for more definite statement of the cause of action. After argument of counsel the trial court entered an order denying the motions to stay execution and to vacate the default and final judgments. Subsequently, on a date more than 60 days after the entry of the final judgment but less than 60 days after the entry of the order denying the motions, the defendant filed its notice of appeal to review the order entered on the motions. The cause now comes before this court on a motion to quash the appeal, because the appeal was not taken within 60 days from the entry of the final judgment.
We are of the opinion that the proper method of reviewing the order is by certiorari. Compare Dade County v. Brigham, Fla., 40 So.2d 835. Inasmuch as section 59.45, Florida Statutes 1941, F.S.A. as amended authorizes this court to treat the notice of appeal and the record thereon as a petition for certiorari when an appeal has been taken in a case where certiorari is the proper remedy, the notice of appeal and the record will be so treated. See Atlantic Coast Line Railroad Co. v. United States Sugar Corporation, Fla., 47 So.2d 513.
Common Law Rule 13(a), 30 F.S.A., provides: "A defendant shall serve his answer within twenty days after the service of the summons upon him, or not later than the day fixed in the notice by publication, if fixed in the notice. * * * Unless a different time is fixed by order of the court, the service of a motion to dismiss shall alter [this period] of time as follows:
"(1) If the court denies the motion, the responsive pleading shall be served within 10 days after notice of the order of denial;
"(2) If the court postpones a ruling on the motion the responsive pleading shall be served within 10 days after notice of the order of postponement, and the filing of service of the responsive pleading shall not be deemed a waiver of any grounds asserted in the motion."
Under this rule a defendant is ordinarily required to file an answer to the complaint within 20 days after the service of the summons upon him, or not later than the day fixed in the notice by publication, if fixed in the notice. However, where by motion to dismiss the defendant sets up any of the claims or defenses authorized by Common Law Rule 13(b), 30 F.S.A., the motion has the effect of tolling the period for filing the answer until the court either has entered an order denying the motion or has entered an order that it intends to postpone a ruling on the motion until some later time. After notice of the entry of such an order the defendant is required to file his answer to the complaint within 10 days, unless the court in its order fixes a different time for the answer to be filed. Compare Strong v. Clay, Fla., 47 So.2d 822, filed September 22, 1950.
In the case at bar the defendant filed a motion to dismiss the complaint within the time fixed by the rule for filing motions. Had the plaintiff been desirous of speeding the cause it could have secured a hearing date on the trial court's calendar, given notice to the defendant of the date secured, and brought the motion on for a hearing and ruling. Instead of following this course the plaintiff waited until 20 days after the service of the complaint upon the defendant and then moved for the entry of a default judgment for failure of the defendant to answer. The motion was granted without notice to the defendant and a default judgment was entered. Later a final judgment based upon the default was also entered without notice. It is our view that the entry of the default judgment and later the final judgment was not authorized by the rules of practice, and that the rendition of these judgments without notice to the defendant did not accord with due process of law.
The motion to quash the appeal is denied; the petition for certiorari is granted; and the order sought to be reviewed is quashed with directions that the default judgment and final judgment be set aside and that the cause proceed thereafter in accordance with the views herein stated.
It is so ordered.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.