FUND INSURANCE COMPANIES, APPELLANT,
v.
SID PRESKITT D/B/A PRESKITT CONSTRUCTION COMPANY, APPELLEE; WILLIAM R. PHILLIPS COMPANY, AN ALABAMA CORPORATION, APPELLANT, V. SID PRESKITT D/B/A PRESKITT CONSTRUCTION COMPANY, APPELLEE
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Two consolidated appeals involving dismissals for failure to prosecute. The court reversed the dismissal in case 2315, finding the motion to dismiss premature because the appellee's filing of a controverting affidavit constituted prosecution. The court dismissed the appeal in case 2361 as untimely.
In case 2315, the dismissal was improper because appellee's controverting affidavit filed on January 31, 1967 constituted prosecution under the rule, making the motion to dismiss premature and not seasonably invoked. In case 2361, the appeal was untimely under the rules then in effect and must be dismissed.
[1] A distinction exists between the service and filing of a pleading, with filing controlling under the rule for purposes of prosecution.
[2] The filing of an answer by a defendant constitutes prosecution of an action within the meaning of rules governing dismissal for failure to prosecute.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Construing the rule then in effect, a distinction exists between service and filing of a pleading, with the latter controlling under the rule.”
Establishes that filing date, not service date, is controlling for purposes of the failure to prosecute rule.
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Join FLexlaw to unlock all legal intelligenceIn case 2315, appellant's last pleading was filed January 30, 1967, followed by appellee's affidavit on January 31, 1967. Over a year later, appellant…
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In these consolidated appeals, appellants challenge dismissal of their actions for failure to prosecute and denial of their petitions for reinstatement.
In case number 2315, appellant’s penultimate pleading was filed on January 30, 1967. Appellee filed his on January 31, 1967, i. e., affidavit controverting motion for summary judgment. On January 30, 1968, appellant served by mail an amended motion for summary judgment and notice of hearing; however, these were not filed until February 1, 1968. On January 31, 1968, appellee filed his motion to dismiss for failure to prosecute which was favorably treated.
Construing the rule then in effect,1 a distinction exists between service and filing of a pleading, with the latter controlling under the rule.
This is a distinction without significance since appellee’s controverting affidavit filed on January 31, 1967, constituted prosecution under the rule2 Therefore, appellee’s motion to dismiss of January 31, 1968, was premature and should have been denied.3 The rule was not seasonably invoked and it is not self-executing.4
Accordingly the order appealed from in case number 2315 is reversed and this cause is remanded for further proceedings consistent herewith.
Case number 2361, although similar, is dispositive on a different point. The order dismissing this cause was entered on *868April 2, 1968, and filed on April 3, 1968. A motion for review and reinstatement was denied by order dated June 6, 1968, and filed June 7, 1968. The notice of appeal was both dated and filed on August 9, 1968. Unfortunately, it was untimely under the rules then in force and effect.5
Accordingly the appeal in case number 2361 is dismissed.
Dismissed as to case number 2361 and reversed and remanded as to case number 2315.
REED and OWEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)…ly “hastens the suit to judgment,” as petitioner puts it. It, for example, sets the basis for a possible summary judgment. Even if NOT answered, it creates a ground for possible dismissal. R.C.P. 1.380(b) (2) (iii). Fund Ins. Companies v. Preskitt, 231 So. 2d 866 (4th DCA Fla.1970), held defendant’s filing of a contraverting affidavit to plaintiff’s motion for summary judgment, to be sufficient action under the rule. We accordingly stand with these precedents in this clarification of the point for future gu…
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ACE Delivery Serv., Inc. v. Pickett, 274 So. 2d 15 (Fla. 2d DCA 1973)…tions so dismissed may be reinstated on motion for good cause, such motion to be served by any party within one month after such order of dismissal.” In considering Rule 1.420(e), RCP, the case of Fund Insurance Companies v. Preskitt, Fla.App.1970, 231 So. 2d 866, held: “Construing the rule then in effect, a distinction exists between service and filing óf a pleading, with the latter controlling under the rule.” The distinction between service and filing of pleadings is also recognized in the following rul…
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E. Elevator, Inc. v. Page, 250 So. 2d 326 (Fla. 4th DCA 1971)…iling of the written interrogatories constitutes sufficient affirmative showing of prosecution of the action to justify denial of a motion to dismiss filed under Rule 1.420(e) R.C.P., 30 F.S.A. Cf. Fund Insurance Companies v. Preskitt, Fla.App.1970, 231 So. 2d 866; Cypress Corporation of Florida v. Smith, Fla.App.1969, 218 So. 2d 481; Rosenfeld v. Glickstein, Fla.App.1967, 200 So. 2d 242; Owens v. Ken’s Paint and Body Shop, Fla.App.1967, 196 So. 2d 17; and, Musselman Steel Fabricators, Inc. v. Radziwon et al.…
Previewing 3 of 6 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)
- Carthel James Rushing v. State, 218 So. 2d 481 (Fla. 3d DCA 1969)
- Hymie Pollack and Sara Pollack v. Pollock, 110 So. 2d 474 (Fla. 1st DCA 1959)
- City OF Jacksonville v. Hinson, 202 So. 2d 806 (Fla. 1st DCA 1967)
- Morton M. Beigel v. Simon, 210 So. 2d 473 (Fla. 3d DCA 1968)
- Passio v. Crowell, 208 So. 2d 877 (Fla. 3d DCA 1968)