ALSON MFG. CO., A FLORIDA CORPORATION, A SUCCESSOR IN INTEREST TO U. S. FLUORESCENT MFG. CO., APPELLANT,
v.
CHARLES SILVERS, INDIVIDUALLY AND DOING BUSINESS AS ADAMS ENGINEERING CO., APPELLEE
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Alson Manufacturing Company, as successor to U.S. Fluorescent Manufacturing Company, sued Charles Silvers for breach of contract to manufacture fixtures and accessories worth $7,600. The issue was whether a prior dismissal for want of prosecution of the same contract by the predecessor company barred the successor's action under the doctrine of res judicata.
The court held that the dismissal for want of prosecution did not bar the successor company's action. When the court dismissed the first case and denied reinstatement, jurisdiction of that case terminated, but this did not preclude the institution of a new action by a successor in interest to the original party.
“When the court dismissed the first case, jurisdiction of that case came to an end especially when reinstatement was denied, but the institution of a new action was not precluded and this, of course, [is] the new action.”
Establishes that dismissal for want of prosecution terminates jurisdiction but does not bar a successor from bringing a new action based on the same contract
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Join FLexlaw to unlock all legal intelligenceU.S. Fluorescent Manufacturing Company proposed to manufacture fixtures and accessories for Adams Engineering Company (owned by Charles Silvers) for $…
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THOMAS, Justice.
Alson Manufacturing Company, described in its complaint as successor to U. S. Fluorescent Manufacturing Company, demanded judgment against Charles Silvers, individually, and Charles Silvers doing business as Adams Engineering Co., basing its claim on these brief allegations: The plaintiff had for a valuable consideration purchased all right, title and interest in U. S. Fluorescent Manufacturing Company, including its choses in action; on 23 May 1952 the U. S. Fluorescent Manufacturing Company had proposed to manufacture for Adams Engineering Company certain fixtures and accessories for $7600 and the proposal had been accepted by Charles Silvers; relying upon the agrees ment the fixtures and accessories were manufactured by U. S. Fluorescent Manu facturing Company but the Adams Engineering Company, or Charles Silvers, refused to accept the goods or to pay the stipulated price; and continued refusal by Adams Engineering Company or Charles Silvers to perform the contract had resulted in deterioration of the property to the extent of $5000.
Although the date of the contract between appellant’s predecessor and Adams Engineering Company, or Charles Silvers, was stated in the complaint, the date of the alleged purchase from appellant’s predecessor by appellant was not alleged.
The complaint was filed 11 May 1956 and the answer of the defendant and his motion for summary judgment were filed the 15th day of the following month. From this answer it appears that the U. S. Fluorescent Manufacturing Company on August 6, 1954 had instituted an action against the appellee claiming damages of $7600 for failure to perform the same contract and this was dismissed for want of prosecution 11 April 1956, just a month before the present action on the same contract was instituted. A motion to vacate the order of dismissal was denied 25 April 1956.
The motion for summary judgment was granted and this appeal followed.
The first case was dismissed by authority of Sec. 45.19, Florida Statutes 1953, and F.S.A., in which it is provided that such disposition of litigation may be made when it does not appear from some action, “by filing of pleadings, order of court, or otherwise” occurring within a year, that the action is being prosecuted. In his order of dismissal the judge specifically recited that such inaction was apparent in the record.
It is obvious that the two actions were based on an identical contract and that sometime, a date about which we are not advised, the plaintiff in the first case, assigned its interest in the contract to the plaintiff in the second case.
The lone question here is whether or not the order of dismissal and the order denying a motion to vacate the order of dismissal amounted to such a determination of the controversy that by the doctrine of res judicata the present action must be defeated. We think we should answer the question in the negative in view of our pronouncements in Hassenteufel v. Howard Johnson, Inc., of Florida, Fla., 52 So. 2d 810, and Zukor v. Hill, Fla., 84 So. 2d 554.
When the court dismissed the first case, jurisdiction of that case came to an end especially when reinstatement was denied, but the institution of a new action was not precluded and this, of course, Í9 the new action.
Reversed.
TERRELL, C. J., and ROBERTS and THORNAL, JJ., concur.
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MAY v. State of Fla. ex rel. Richard W. Ervin, 96 So. 2d 126 (Fla. 1957)…may be determined in a subsequent suit for such a dismissal does not amount to an adjudication of the merits, Hassenteufel v. Howard Johnson, Inc., of Florida, Fla., 52 So. 2d 810; Zukor v. Hill, Fla., 84 So. 2d 554; Alson Mfg. Co. v. Silvers, Fla., 95 So. 2d 16, notwithstanding any expression in Hinchee v. Fisher, Fla., 93 So. 2d 351, with reference to Rule 41 (b), Federal Rules of Civil Procedure, 28 U.S.C.A., apparently to the contrary. The order under review is hereby quashed with directions that an or…
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Gibbs v. Trudeau, 283 So. 2d 889 (Fla. 1st DCA 1973)…J., and DREW, Associate Judge, concur. . Case v. Smith (1941), 146 Fla. 340, 200 So. 917. . Shew v. Kirby (Fla.App.1961), 135 So. 2d 770. . Hassenteufel v. Howard Johnson, Inc. (Fla.1951), 52 So. 2d 810; Alson Mfg. Co. v. Silvers (Fla.1957), 95 So. 2d 16; May v. State ex rel. Ervin (Fla.1957), 96 So. 2d 126; Yinger v. Kasow (Fla.App.1960), 123 So. 2d 758. . Hinchee v. Fisher (Fla.1957), 93 So. 2d 351. . Shew v. Kirby, supra note 2; Zukor v. Hill (Fla.1956), 84 So. 2d 554.…
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Kevin v. Brown, 884 So. 2d 1065 (Fla. 2d DCA 2004)…pect to Brown’s complaint before the circuit court. But none of the prior rulings of the county court, the circuit court, or this court constitute a ruling on the merits. These rulings do not have res judicata effect. See Alson Mfg. Co., v. Silvers, 95 So. 2d 16, 17 (Fla.1957); Malunney v. Pearlstein, 539 So. 2d 493, 495 (Fla. 2d DCA 1989). The voluntary dismissal before the county court is not a determination on the merits entitled to res judicata effect. See Froman v. Kirland, 753 So. 2d 114, 116 (Fla. 4t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hassenteufel v. Johnson, 52 So.2d 810 (Fla. 1951)
- Zukor v. Hill, 84 So. 2d 554 (Fla. 1956)