Florida District Courts of Appeal, 1978

Smith v. Home Insurance Co.

Smith v. Home Insurance Co.
Florida District Courts of Appeal · Decided September 27, 1978 · Beranek, Downey, Moore
363 So. 2d 159; 1978 Fla. App. LEXIS 16433 (Southern Reporter, Second Series)

Smith v. Home Insurance Co.

Opinion of the Court

PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and MOORE, J., concur. BERANEK, J., dissents with opinion.

Dissenting Opinion

BERANEK, Judge,

dissenting:

This is an interlocutory appeal from an order vacating a default. The only proof in support of the motion to vacate the default was the sworn motion itself. This motion was sworn to by counsel of record and although counsel obviously had certain facts within his own personal knowledge, the affidavit contains numerous statements which could not have been within his personal knowledge. Realizing that speed was essential in the filing of the motion, I would reverse the trial court on the sole basis that the attorney’s affidavit supporting the motion was insufficient. I would, therefore, reverse and remand with instructions to allow the taking of supplemental evidence in support of the motion to vacate.

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