D'Alacio v. Intercontinental Bank

SCHWARTZ, Chief Judge

(specially concurring).

I entirely agree with the opinion and the result. I would add only that the appellant did not wholly fail to respond to the attempt to secure relief against him in the counterclaim. To the contrary, his counsel filed a “demurrer” to the motion for de*1292fault. Unfortunately, the trial judge simultaneously struck the demurrer as an improper pleading and entered the default complained of on the ground that no appropriate pleading was on file. We may assume without deciding that the former ruling was a technically correct one. It was, notwithstanding, unfair not to give the plaintiff any chance whatever — even as little as one day — to correct the deficiency by filing a readily available and appropriate response to the counterclaim so as to avoid the default. See Order of United Commercial Travelers of America v. Bell, 184 F. 298 (5th Cir.1911) (quoted in Gelkop v. Gelkop, 384 So.2d 195, 203 (Fla. 3d DCA 1980), Schwartz, J., dissenting); Bernuth Marine Shipping, Inc. v. Integrated Container Serv., 369 So.2d 424 (Fla. 3d DCA 1979).