RALPH C. PASSIO AND MARY A. PASSIO, HIS WIFE, APPELLANTS,
v.
SAM CROWELL AND MARY CROWELL, HIS WIFE, APPELLEES
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The Third District Court of Appeal reversed a dismissal for want of prosecution, holding that Florida Statute § 45.19 is not self-executing and requires affirmative motion before dismissal can be entered once action has resumed in the case.
No. The statute is not self-executing and requires an affirmative motion by the opposing party before dismissal for want of prosecution can be entered once action has been resumed in the case.
“F.S. § 45.19, F.S.A., 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 the controlling legal rule that dismissal for want of prosecution requires an affirmative motion and cannot occur automatically once action resumes
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Join FLexlaw to unlock all legal intelligencePlaintiff filed an action for damages on March 16, 1965, and case progressed through August 5, 1965. After more than a year of inactivity until Septem…
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This is an appeal by the plaintiff below from an order denying his motion to vacate an order of dismissal of the cause for want of prosecution.
Appellant filed an action for damages in the circuit court on March 16, 1965. The cause was progressed, by motions, orders and amendments, to August 5, 1965. The pleading filed on that date was a notice of hearing on a pending motion to dismiss a second amended complaint for failure to state a cause of action. Thereafter, for more than a year, until September 7, 1966, there was no “action taken by filing of pleadings, order of court, or otherwise.”
Prior to any motion to dismiss for want of prosecution, proceedings .were resumed in the cause. On September 7, 1966, a stipulation was filed for substitution of counsel for plaintiff. On September 13, 1966, a notice of hearing was filed. On September 21, 1966, an order was entered dismissing the second amended complaint for failure to state a cause of action, with leave granted to further amend. On October 10, 1966, a third amended complaint was filed. On October 18, 1966, the defendants filed a motion to dismiss the third amended complaint for failure to state a cause of action. Some four months thereafter, on February 27, 1967, the trial court, of its own motion, entered an order dismissing the cause for want of prosecution, under § 45.19 Fla.Stat., F.S.A.1
The plaintiff filed a timely motion to vacate the order of dismissal for want of prosecution and to reinstate the cause, suggesting the dismissal had been entered by mistake, and pointing out that the pleadings and an order had been filed in the cause during September and October of 1966, less than a year prior to the order of dismissal for want of prosecution. That motion, as stated above, was denied and this appeal followed.
The appellant contends, and we agree, that the trial court was in error in denying the motion to reinstate the cause. The controlling point is that the statute did not become self-operating upon the lapse of more than a year (August 1965 to September 1966) without progress of the cause. That interval of inaction in the cause did not require or authorize dismissal under § 45.19 Fla.Stat., F.S.A. for want of prosecution, where the record disclosed pleadings and an order filed therein four months earlier, in September and October of 1966.
The law applicable to the situation presented here was settled by the Supreme Court of Florida in Pollock v. Pollack, Fla.1959, 116 So.2d 761. See also City of *879Miami v. Railway Express Agency, Inc., Fla.App.1962, 141 So.2d 285.
In the Pollock case the Court said:
"We agree with the District Court’s determination that we repudiated and receded from the Hancock rule in Scarlett v. Frederick, 1941, 147 Fla. 407, 3 So.2d 165, Dudemaine v. Shaw, 1944, 153 Fla. 899, 16 So.2d 114, and May v. State, Fla. 1957, 96 So.2d 126. The existing rule on this point of law was correctly restated by the District Court when it said:
‘F.S. § 45.19, F.S.A., is not self-executing hut 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.’ 110 So.2d 474, 477.”
For the reasons stated the order appealed from is reversed and the cause is remanded for further proceedings.
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Fund Ins. Cos. v. Sid Preskitt, 231 So. 2d 866 (Fla. 4th DCA 1970)…. Pollack, Fla.App.1959, 110 So. 2d 474 (cert. den. Fla.1959, 116 So. 2d 761), construing F.S. 45.19(1), F.S.A. which contained similar wording as F.R.O.P. 1.420(e) ; Beigel v. Simon, Fla.App.1968, 210 So. 2d 473. . Passio v. Crowell, Fla.App.1968, 208 So. 2d 877. . F.A.R. 3.2 subd. b, 4.2, subd. b, 1962 revision, 32 F.S.A., effective through September 30, 1968.…
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Equity Cap. Co. v. 601 W. 26 Corp., 223 So. 2d 762 (Fla. 3d DCA 1969)…f-executing. The moving party must seek dismissal prior to resumption of affirmative action toward prosecution of the case. Pollock v. Pollack, Fla.1959, 116 So. 2d 761; Beigel v. Simon, Fla.App.1968, 210 So. 2d 473; Passio v. Crowell, Fla.App.1968, 208 So. 2d 877; Knowles v. Gilbert, Fla.App.1968, 208 So. 2d 660. Since defendants did not move for dismissal prior to July 29, 1968, the date plaintiff filed its motion for deficiency decree, and the court did not dismiss this suit on its own motion prior to tha…
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Colonial Press OF Miami, Inc. v. Roberts, 342 So. 2d 1097 (Fla. 3d DCA 1977)…PER CURIAM. Affirmed. See Pollack v. Pollock, 110 So. 2d 474 (Fla. 1st DCA 1959), cert. denied 116 So. 2d 761 (Fla.1959); Passio v. Crowell, 208 So. 2d 877 (Fla. 3d DCA 1968).…
Previewing 3 of 4 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)
- MAY v. State of Fla. ex rel. Richard W. Ervin, 96 So. 2d 126 (Fla. 1957)
- Pollock v. Hymie Pollack and Sara Pollack, 116 So. 2d 761 (Fla. 1959)
- Anderson v. State, 141 So. 2d 285 (Fla. 1st DCA 1962)
- Hymie Pollack and Sara Pollack v. Pollock, 110 So. 2d 474 (Fla. 1st DCA 1959)
- ZOE M. Dudemaine v. Shaw, 153 Fla. 899 (Fla. 1944)