Underwriters Insurance Co. v. Sisung , 174 So. 2d 461 ( 1965 )

174 So. 2d 461 (1965)

UNDERWRITERS INSURANCE COMPANY, Appellant,
v.
Margaret SISUNG and William H. Groner, Appellees.

No. 64-870.

District Court of Appeal of Florida. Third District.

April 13, 1965. Rehearing Denied May 11, 1965.

George J. Baya, Miami, for appellant.

Bolles & Goodwin, Kenneth L. Ryskamp, Miami, and Shorenstein & Lewis, Miami Beach, for appellees.

Before CARROLL, HENDRY and SWANN, JJ.

SWANN, Judge.

This is an appeal by the defendant, Underwriters Insurance Company, from a summary final judgment entered by the lower court for the plaintiffs.

The plaintiffs moved for a summary judgment, based on the pleadings, affidavits and depositions on file.

The defendant did not file an affidavit in opposition thereto; but had alleged certain affirmative defenses in its answer. It is admitted that the affidavit of the plaintiffs did not contradict or deny the affirmative defenses.

The lower court entered its summary final judgment based on the pleadings and affidavit of the plaintiff, and this appeal followed.

The summary final judgment should be reversed, on the authority of Emile v. First National Bank of Miami, Fla.App. 1961, 126 So. 2d 305, which held that a party is not entitled to a summary judgment where the defendant has pleaded affirmative defenses, and the movant had not submitted, by affidavit, anything in contradiction or opposition thereto.

Reversed.