HomeMy WebLinkAbout2049 . i~ ,
IN THE CIRCUI'1' COURT OF THE NINETEENTH~
JUDICIAL CIRCUIT, IN AND FOR SAINT '
LUCIE COUNTY, FLORIDA. . `
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Case No. 74-18
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~~MARIE COX, ~ • ~
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( Appellant, • ~
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`'WILLIAM BURDETT, individually and . ' ~
~~WILLIAM BURDETT, doing business as . ~ '
~~BILL'S AUTO SALES, • ~
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Appellee. • '
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ORDER `
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Appellant, MARIE COX, appeals from the Small Claims Court of ;
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!~Saint Lucie County, Florida, denying Appellant's Motion to Vacate .
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~~a Final Judgment in favor of Appellee. ;
The facts stated briefly are: That on or about March 3, 1971,~
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;~Appellant purchased a used 1965 Ford Fairlane automobile from Apel-;
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!~lee for the sum of Six Hundred ninety-five Dollars (~695.00).
~~Because of inechanical malfunction of said automobile Appellant ~
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';returned same to Appellee for the necessary adjustments. During ,
~;the course of making the adjustments the Appellee's mechanic knockeCi
;;a hole in the transmission. When Appellant requested that Appellee;
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i;repair transmission or return the amount paid by her, Appellee ;
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l;refused. Appellant sued the Appellee in S~all Claims Court. In
i ,~setting the hearing the clerk of the Small Claims Court made a mis-~
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~ ~~take in the mailing address of counsel for Appellant and therefore
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;icounsel did not receive notice. A hearing was held and a Final
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:;Judgment was entered against Appellant. Appellant filed a Motion ,
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~ '~to Vacate Final Judgment. Adequate notice was given of the hearing' ;
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!~and Appellee failed to appear. After hearing the motion presented ~ ~
;~by counsel for Appellant, the Court denied same. The case of
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~ ~~Crvstal Lake Golf Course, Inc v. Kalin, 252 So. 2d 379 sets forth
~ ;:the applicable law on all issues in this cause. Citing Evans
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~ '.~Hv~ man, 168 So. 2d 183, the Court stated:
~ " The established rule in Florida, either
as to the opening of defaults, or the
~ vacating of judgments, is that these
a; matters of judicial discretion and that, ~
' in case of reasonable doubt, where there
has been no trial upon the merits, this =
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~ discretion is usually exercised in favor ~
~ ' of granting the application for such a ~
~ procedure so as to permit determination ~
~ of controversy upon the merits." ~
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~ ! 1 ~8@It ~"r~rp PAGE 2044 ~
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