WILLIAM KNOWLES, APPELLANT,
v.
JOHN GILBERT, DAN DIEBERT AND P. J. BENEDETTO, APPELLEES
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Appellant Knowles sought reversal of an order denying her motion to reinstate a civil action that had been dismissed for want of prosecution. The court held that filing a notice of hearing on a pending motion constitutes actionable progress on the case that prevents dismissal for want of prosecution, and reversed the dismissal.
The filing of a notice of hearing on a prior pending motion constitutes actionable progress that prevents dismissal for want of prosecution. The trial court erred in denying plaintiff's motion to reinstate the cause.
“the filing of the last pleading (notice of hearing, filed September 9, 1966), coming prior to the filing of a motion for dismissal for want of prosecution, and prior to action of the court of its own motion to that end, operated to progress the cause so as to preclude the dismissal thereof for want of prosecution”
Establishes that filing a notice of hearing on pending motions constitutes actionable progress that prevents dismissal for want of prosecution.
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Join FLexlaw to unlock all legal intelligenceThe action was commenced July 21, 1965, with an amended complaint filed September 1, 1965. Defendants filed motions to dismiss on September 3 and 10, …
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Appellant seeks reversal of an order denying her motion to vacate an order which dismissed the cause for want of prosecution under § 45.19 Fla.Stat., F.S.A., and rule 1.35(e) F.R.C.P., 30 F.S.A., and for reinstatement of the cause.
The action was commenced July 21, 1965. An amended complaint was filed September 1, 1965. A motion to dismiss, addressed thereto, was filed September 3, 1965. A similar motion, with a motion to strike, was filed by another defendant on September 10, 1965. No action was then taken until September 9, 1966, when the plaintiff filed a notice on hearing of said motions. That notice was filed on the 365th day after the prior pleading. Thereafter the defendants separately filed motions to dismiss the cause for want of prosecution under the above cited statute and rule.. On October 3, 1966, the trial court granted the motions and dismissed the cause. The plaintiff filed a timely petition to reinstate the cause of action, alleging the circumstances recited above and citing and relying on the case of Pollock v. Pollack, Fla.1959, 116 So.2d 761.
Assuming, but not so deciding, that where a pleading is filed on the last day of a year from the date of filing of the last preceding pleading or order in the case, that such would amount to a want of prosecution for “one year,” the filing of the last pleading (notice of hearing, filed September 9, 1966), coming prior to the filing of a motion for dismissal for want of prosecution, and prior to action of the court of its own motion to that end, operated to progress the cause so as to preclude the dismissal thereof for want of prosecution, under the authority of Pollock v. Pollack, supra. See also City of Miami v. Railway Express Agency, Inc., Fla.App.1962, 141 So.2d 285. The filing of a notice of hearing as to a prior pending motion is “action” by filing of a pleading, signifying progress of the cause within the purview of the statute and rule. Scarlett v. Frederick, 147 Fla. 407, 3 So.2d 165, 167; City of Miami v. Railway Express Agency, Inc., supra.
We hold, therefore, that the trial court was in error in denying the plaintiff’s motion to reinstate the cause, and the order appealed from is reversed.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla. 1972)…noticing the motion [to produce] for hearing was not a step taken in good faith . . . , it was sufficient, when done before the motion to dismiss for want of prosecution, to protect against dismissal.” (Emphasis supplied) Accord, Knowles v. Gilbert, 208 So. 2d 660 (Fla.App.3rd, 1968) and Beigel v. Simon, 210 So. 2d 473 (Fla.App. 3rd, 1968). .The complete series of procedural maneuvers at the trial level may thus be summarized as follows: 1. June 30, 1969: Continuance granted because of illness of plaintiff…
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Nationsbank, N.A. v. Ziner, 726 So. 2d 364 (Fla. 4th DCA 1999)…cant record activity occurred. Because the provisions of Rule 1.420(e) are not self-actuating, the court should not have dismissed the case for failure to prosecute in 1998, even though it arguably could have done so in 1994. See Knowles v. Gilbert, 208 So. 2d 660 (Fla. 3d DCA 1968); Dolan v. Hartford Ins. Co. of the Southeast, 566 So. 2d 316, 317 (Fla. 4th DCA 1990), rev. den., 577 So. 2d 1326 (Fla.1991). REVERSED and REMANDED for further consistent proceedings. STEVENSON, TAYLOR, JJ„ and BROWN, LUCY CHERN…
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Hanson v. Poteet, 556 So. 2d 828 (Fla. 2d DCA 1990)…rosecute. Under these circumstances, that motion seems to be an act of prosecution which resets the one-year clock. Liuzzo v. Crapo, 504 So. 2d 480 (Fla. 1st DCA 1987); Kinsey v. Skyline Corp., 395 So. 2d 626 (Fla. 1st DCA 1981); Knowles v. Gilbert, 208 So. 2d 660 (Fla. 3d DCA 1968). We believe that this case is distinguishable from Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718 (Fla.1987). There the Florida Supreme Court addressed the issue of whether a movant's premature motion to dismiss const…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scarlett v. Frederick, 147 Fla. 407 (Fla. 1941)
- Pollock v. Hymie Pollack and Sara Pollack, 116 So. 2d 761 (Fla. 1959)
- Anderson v. State, 141 So. 2d 285 (Fla. 1st DCA 1962)