EQUITY CAPITAL COMPANY, A MINNESOTA CORPORATION, APPELLANT,
v.
601 WEST 26 CORP. A/K/A 601 WEST 26 CORPORATION, A NEW YORK CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA; AND TRUNK CORP. A/K/A TRUNK CORPORATION, A FLORIDA CORPORATION, APPELLEES
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The court held that the dismissal of the plaintiff's motion for a deficiency decree was improper because the defendants did not seek dismissal before the plaintiff resumed affirmative action in the case.
Plaintiff sought a deficiency decree after a mortgage foreclosure. The trial court dismissed the motion for failure to prosecute under Fla.R.Civ.P. 1.…
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Plaintiff has appealed the dismissal of its motion for deficiency decree in a mortgage foreclosure suit. On motion by defendants, the trial judge denied plaintiff’s motion on the ground that plaintiff had failed to take any affirmative action for a period in excess of one year as required by Fla.R.Civ.P. 1.420(e), 30 F.S.A.
The dismissal must be reversed because plaintiff had resumed activity in this case before any action was taken to invoke the provisions of Fla.R.Civ.P. 1.420(e). On May 16, 1967, a mandate of this court was filed in the lower court. No further action was taken in this case until plaintiff filed its motion for deficiency decree on July 29, 1968, more than one year later. Defendants filed their motion to dismiss on September 18, 1968, along with their answer and defenses to plaintiff’s motion.
Fla.R.Civ.P. 1.420(e) is not self-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 that date, dismissal for failure to prosecute was improper.
Reversed and remanded.
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Chrysler Leasing Corp. v. Passacantilli, 259 So. 2d 1 (Fla. 1972)…g the October 15, 1970 motion. See Owens v. Ken’s Paint and Body Shop, 196 So. 2d 17 (Fla.App. 3rd, 1967); Adams Engineering Company, Inc. v. Construction Products Corporation, 156 So. 2d 497 (Fla. 1963); Equity Capital Company v. 601 West 26 Corp., 223 So. 2d 762 (Fla.App. 3rd, 1969); and Whitney v. Whitney, 241 So. 2d 436 (Fla.App. 2d, 1970). Conversely, assuming the existence of the “Order”, the affidavit of July 17, 1970, is a sufficient showing of good cause for plaintiff’s failure to prosecute during th…
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Overseas Dev., Inc. v. Amerifirst Fed. Sav. & Loan Ass'n, 433 So. 2d 587 (Fla. 3d DCA 1983)…nyder, 275 So. 2d 302 (Fla. 3d DCA 1973); Shalabey v. Memorial Hospital of the South Broward Hospital District, 253 So. 2d 712, 715 (Fla. 4th DCA 1971). See also Little v. Sullivan, 173 So. 2d 135 (Fla.1965); Equity Capital Co. v. 601 West 26 Corp., 223 So. 2d 762 (Fla. 3d DCA 1969); Landfield v. Sherman, 201 So. 2d 819 (Fla. 4th DCA 1967). 2 St. Anne Airways Corp. v. Larotonda, 308 So. 2d 129 (Fla. 3d DCA 1975); Florida Power and Light Co. v. Gilman, 280 So. 2d 15 (Fla. 3d DCA 1973). See also Gulf Appliance…
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Vernie Ray Barnes v. Escambia Cnty. Emps. Credit Union, 488 So. 2d 879 (Fla. 1st DCA 1986)…79), cert. denied, 385 So. 2d 754 (Fla.1980). However, rule 1.420(e) “is not self-executing. The moving party must seek dismissal prior to resumption of affirmative action toward prosecution of the case.” Equity Capital Company v. 601 West 26 Corp., 223 So. 2d 762 (Fla. 3d DCA 1969). Since appellant failed to move for dismissal under the rule, the trial court had no reason to dismiss the cause or grant appellant’s motion for summary judgment. The final deficiency judgment and the order denying appellant’s mo…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pollock v. Hymie Pollack and Sara Pollack, 116 So. 2d 761 (Fla. 1959)
- Morton M. Beigel v. Simon, 210 So. 2d 473 (Fla. 3d DCA 1968)
- Passio v. Crowell, 208 So. 2d 877 (Fla. 3d DCA 1968)
- Brunk-Smith Chris Craft, Inc. v. Espenlaub, 208 So. 2d 660 (Fla. 2d DCA 1968)
- Knowles v. Gilbert, 208 So. 2d 660 (Fla. 3d DCA 1968)