Oxford Consumer Discount Co. v. Adler

Full title: OXFORD CONSUMER DISCOUNT COMPANY, A FOREIGN CORPORATION, APPELLANT, v…

Court: District Court of Appeal of Florida, Third District

Date published: Jul 18, 1974

296 So. 2d 568 (Fla. Dist. Ct. App. 1974)

Opinion

No. 73-1413.

June 18, 1974. Rehearing Denied July 18, 1974.

Appeal from the Circuit Court, Dade County, James H. Earnest, J.

Robert S. Korschun, Miami, for appellant.

Arthur F. McCormick, Miami, for appellee.

Before PEARSON, CARROLL and HAVERFIELD, JJ.

PER CURIAM.

This is an appeal from an order denying appellant's motion made pursuant to Rule 1.540(b), RCP 31 F.S.A., to vacate a judgment. The issue here is whether the trial court erred in holding that appellant's motion did not show excusable neglect. We hold that the motion and accompanying affidavit were insufficient to show excusable neglect. See Austin Burke, Inc. v. Vigilant Insurance Co., Fla.App. 1965, 179 So.2d 600.

Affirmed.

CARROLL, Judge (concurring in part and dissenting in part).

Incident to a loan of $4,915.68 obtained by them in the State of Pennsylvania, M. Murray Adler and Martha Adler signed a promissory note therefor, with provision for enforcement of the obligation, upon default, by a confession judgment. Following default a judgment on that basis was entered in Pennsylvania.

The payee, Oxford Consumer Discount Company, filed an action on the note in Dade County, Florida, against Martha Adler, one of the makers. In answer to an interrogatory the defendant admitted signing the note.

It was, of course, necessary to the prosecution of the plaintiff's action that the original note be produced and offered in evidence. In this case the defendant moved for an order to require the plaintiff to produce it. The note was in custodia legis in Pennsylvania, having been filed in the action there. Proceedings in Pennsylvania to obtain the note for production here were delayed through procrastination of plaintiff's counsel in Pennsylvania in moving for its withdrawal, with the result that there was no timely compliance with the order to produce, for which, on motion of the defendant, the trial court dismissed the cause with prejudice.

The plaintiff filed a motion to vacate the dismissal, explaining the delay in obtaining the note, and attaching the original of the note. The motion was denied by an order from which this appeal was filed by the plaintiff.

I concur in the judgment of this court affirming the dismissal of the plaintiff's action, as a sanction authorized by the rules for failure to comply with the order to produce, but I dissent to the extent that in my view the judgment of dismissal should be modified by this court to be without prejudice. In the circumstances of this case the dismissal with prejudice, which had the practical effect of cancelling the obligation as to the maker now residing in Florida, represented the imposition of a sanction which was overly harsh and excessive. See Rashard v. Cappiali, Fla.App. 1965, 171 So.2d 581.