CITY OF MIAMI, A MUNICIPAL CORPORATION, AND CITY OF MIAMI, A MUNICIPAL CORPORATION FOR THE USE AND BENEFIT OF ERNEST V. YOUNG, APPELLANTS,
v.
RAILWAY EXPRESS AGENCY INCORPORATED AND THOMAS I. NEWMAN, APPELLEES
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The City of Miami appealed a trial court's dismissal of its personal injury complaint for want of prosecution under Florida Statute § 45.19. The appellate court reversed, holding that the plaintiff's act of noticing a pending motion for hearing constituted sufficient affirmative action to prosecute the cause before the defendant's motion to dismiss was filed.
The dismissal was error. The plaintiff's act of noticing the pending motion for hearing, done in good faith to prosecute or progress the cause and completed before the defendant's motion to dismiss was filed, constituted sufficient affirmative action under § 45.19 to prevent dismissal for want of prosecution.
“is not self-executing but requires the moving party to seek dismissal before any affirmative action in the prosecution of the cause is taken subsequent to the required period for abatement”
Establishes that § 45.19 requires defendants to move for dismissal before plaintiff takes any affirmative prosecutorial action after the one-year period
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Join FLexlaw to unlock all legal intelligenceThe case involved a personal injury claim by Ernest V. Young. After a continuance was granted on May 17, 1960, no action was taken for over one year. …
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This is an appeal to review a final judgment dismissing plaintiff’s complaint for want of prosecution pursuant to § 45.19, Fla.Stat., F.S.A.1 The primary question in the instant appeal is whether the trial court erred in dismissing the cause on the ground that the plaintiffs had not taken “action” within the meaning of § 45.19.
After careful review of the record we are convinced that the judgment appealed must be reversed.
The salient facts necessary for the determination of the question involved are: Numerous’ motions and orders were filed prior to April 1, 1960. On April 19, 1960, defendants moved to require plaintiffs to deliver unto the defendants’ attorney the physicians’ reports of the alleged injuries of the plaintiff, Ernest Young. The court granted plaintiff’s request for a continuance for the term on May 17, 1960. On May 25, 1961, plaintiffs duly requested the clerk of the court to redocket the case for jury trial. During the same day, plaintiffs gave notice to the defendants that plaintiffs had caused the defendants’ motion of April 19, 1960 (which was still pending), to be set down for hearing on June 2, 1961. Four days later the defendants moved to dismiss the cause for lack of prosecution pursuant to § 45.19. The lower court granted the motion and entered the final judgment appealed.
The courts of this state have held that § 45.19 “ ‘is not self-executing but requires the moving party to seek dismissal before any affirmative action in the prosecution of the cause is taken subsequent to the required period for abatement.’ ” Pollock v. Pollack, Fla.1959, 116 So.2d 761.
*287It is true that more than one year had elapsed from May 17, i960, the date of the continuance to May 25, 1961, the date of which plaintiff gave notice to the defendant that the pending motion had been set down for hearing. However, defendant’s motion to dismiss for want of prosecution was not made until four days after the plaintiff had progressed the case by setting down the pending motion. In the absence of a showing that the act of noticing the motion for hearing was not a step taken in good faith to prosecute or progress the cause, it was sufficient, when done before the motion to dismiss for want of prosecution, to protect against dismissal. It follows that the final judgment appealed should be and is hereby reversed.
Reversed.