#### JEFFCOAT EQUIPMENT, INC., Appellant, v. JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY, a Maryland corporation, Appellee.

No. S-140.

District Court of Appeal of Florida, First District.

July 26, 1973.

Rehearing Denied Aug. 31, 1973.

Jere Tolton of Smith, Tolton, Grimsley & Barron, Fort Walton Beach, and Wilson W. Wright, Tallahassee, for appellant.

Dale E. Rice, Crestview, for appellee.

JOHNSON, Judge.

Appellant, a third-party defendant below, seeks reversal of the trial court’s final judgment entered upon a default and the trial court’s order denying appellant’s motion for a new trial and rehearing to set aside the default judgment.

In denying the motion for new trial and rehearing, the trial judge noted that the court had considered the motion *as well*as the argument of counsel and was of the continued opinion that the testimony presented by the president of the appellant was insufficient to justify setting aside the default judgment. The court below further stated that its decision was also based on lack of due diligence on the part of appellant in not contacting a Florida attorney until after the period of time had run before default. Hence, it is apparent that the trial judge did not rely solely on the wording in the motion to set aside the default, but also upon the testimony presented by appellant in support of its motion. Inasmuch as appellant has not seen fit to afford this Court the benefit of the testimony presented by appellant in support of its motion to set aside the default or in support of its motion for a “new trial and rehearing”, we cannot now review the sufficiency of the evidence upon which the trial court concluded the same insufficient to justify a new trial or rehearing on the motion to set aside the default. Neither can we review the unrebutted evidence touching on the damages sustained by the third party plaintiff upon which the final judgment was based. The third-party defendant had not requested the trial court to give notice of hearing on the question of damages, and a valid default judgment having been entered against said third-party defendant, no notice thereof was required.1

*234It appearing from the record on appeal, briefs and oral argument of the parties that appellant has failed to demonstrate that prejudicial error was committed in the proceedings below, the judgment and order appealed herein are AFFIRMED.

RAWLS, C. J., concurs.

SPECTOR, J., specially concurring.

1

. Stevenson v. Arnold, 250 So.2d 270 (Fla.1971).

SPECTOR, Judge

(specially concurring) :

This action arose out of the purchase of a bulldozer by one Gilmore from appellant. The purchase was made by way of an installment sales contract which was assigned by appellant to John Deere Industrial Equipment Company. Appellant warranted the bulldozer to Gilmore for thirty days. However, the thirty days did not pass before Gilmore encountered numerous mechanical difficulties with the equipment. Although appellant attempted on two occasions to make repairs, these attempts were ineffectual and additional defects of significant magnitude appeared. In essence, the bulldozer was what is popularly termed a “lemon”. Gilmore made only two payments on the installment contract and notified appellant to come get the machine when it became apparent to him that he could get no satisfaction from appellant.

In due course, the bulldozer was picked up and sold and John Deere brought an action against Gilmore for the balance due, whereupon Gilmore filed his third-party action against appellant, Jeffcoat Equipment, Inc. Although service upon appellant was properly perfected, appellant failed to respond in accordance with the rules and a default was entered against Jeffcoat.

While I concur with the majority opinion that there has been no showing of abuse of discretion on the part of the trial judge by his failure to set aside the default against appellant, I deem it appropriate to state that while appellant’s reliance on Riley v. Gustinger, 235 So.2d 364 (Fla.App.1970), is not totally without merit with respect to the issue on whether appellant was entitled to notice of hearing on the damage question, it appears that the decision in Riley has been superseded by the Supreme Court’s later decision in Stevenson v. Arnold, 250 So.2d 270 (Fla.1971). As argued by appellant, a reading of Riley would lead one to the conclusion that after the entry of a default upon a complaint claiming unliqui-dated damages, the defendant should be given notice of the hearing at which damages are intended to be proved. If that proposition of law was established in the Riley case, it is quite clear that a contrary ruling was reached by the Supreme Court in Stevenson v. Arnold, supra. It is for that reason, therefore, that I feel the court must reject appellant’s contention that he is entitled to notice of hearing on the damage question and the consequent opportunity to defend against the plaintiff’s claim for unliquidated damages.