RAINEY ET AL.
v.
ROESALL CORP.
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Plaintiffs appealed a judgment dismissing their suit for want of prosecution when they were unable to proceed at trial due to an untaken deposition. The Florida Supreme Court affirmed the dismissal, holding that the trial judge properly denied the continuance motion and did not abuse its discretion.
The trial judge did not commit reversible error. When a defendant notices a case for trial and the plaintiff is unable to proceed because the plaintiff is absent or because her deposition simply has not been taken, more is required to show that the trial judge failed to exercise sound judicial discretion in denying the continuance and granting dismissal.
“While much must be left to the discretion of a trial judge in a matter like this, and this court is always most reluctant and hesitant in reversing judgments rendered after continuances have been applied for and denied, yet we have not hesitated to consistently declare that, when a trial judge perceives that in consequence of inadvertence of counsel, or other cause, the rigid enforcement of rules of procedure would defeat the great object for which they were established, it is his duty to so relax them (when it can be done without injustice to any) as to make them subserve their true purpose, which is to promote the true administration of justice.”
Establishes the standard of review for denial of continuances and the balance between procedural rules and justice.
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Join FLexlaw to unlock all legal intelligenceThe suit was commenced in August 1949 and came at issue in January 1952. The defendant noticed the case for trial on September 25, 1952, with trial se…
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BARNS, Justice.
This is an appeal from a final judgment of dismissal entered in open court when the case was called for trial, at which time the appellant-plaintiff sought a continuance for the term. The continuance was denied. We find no error and affirm.
The suit was commenced in August, 1949, and came at issue in January, 1952, whereupon the defendant on September 25, 1952, “noticed” the case for trial, and the case was set for trial on October 28, 1952.
When the case was called for trial appellants’ attorney filed a written motion for a continuance for the term setting forth that upon the case being noticed for trial that arrangements were made to take the deposition of the plaintiff in Mississippi through associate counsel of Mississippi; that he had not received copies of the deposition “if they were taken”, and counsel for the defendant had advised that such depositions were not taken, and such is the only knowledge that counsel has of the matter. He was advised by letter on the morning of trial date that the depositions were not taken.
Upon this motion being presented the Court advised plaintiffs’ counsel that the motion was not sufficient and indicated that counsel might “like to redraft” which offer was refused, and thereupon defendant’s counsel filed and presented a motion to dismiss for want of prosecution, which was granted.
Relating to continuances, in Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276, it is said: “While much must be left to the discretion of a trial judge in a matter like this, and this court is always most reluctant and hesitant in reversing judgments rendered after continuances have been applied for and denied, yet we have not hesitated to consistently declare that, when a trial judge perceives that in consequence , of inadvertence of counsel, or other cause, the rigid enforcement of rules of procedure would defeat the great object for which they were established, it is his duty to so relax them (when it can be done without injustice to any) as to make them subserve. their true purpose, which is to promote the true administration of justice. See Barber v. State, 5 Fla. 199, text 204.”
Under the facts and circumstances we are unable to conclude that the trial judge committed reversible error. When a defendant notices the case for trial and the plaintiff is unable to proceed because plaintiff is1 absent or because her deposition simply has not been taken more is required in order to make it appear that the trial judge failed to exercise sound judicial discretion.
Affirmed.
ROBERTS, C. J.,, and TERRELL,. .SE-BRING, . MATHEWS . and DREW, JJ., concur. THOMAS, J., dissents.-
THOMAS, Justice.
I dissent because I am of the opinion that the appeal^ should be dismissed 'for want of a final judgment
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Citator
Cited By
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McWHORTER v. Grady McWHORTER, 122 So. 2d 504 (Fla. 2d DCA 1960)…by the above quotation, the applicable principles of law and equity control matters of judicial discretion, and if any ruling by a lower court is clearly arbitrary, unreasonable or unjust, it may be set aside. In Rainey v. Roesall Corp., Fla. 1954, 71 So. 2d 160, where the plaintiff was absent and her deposition had not been taken, the Supreme Court held that it was not an abuse of discretion to proceed with trial. In other jurisdictions we find that a similar rule is generally used. When a continuance is r…
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Taylor v. Mazda Motor OF Am., Inc., 934 So. 2d 518 (Fla. 3d DCA 2005)…eisberg successfully made the trial judge aware that he was not ready for trial. It was, therefore, within the trial judge’s discretion to deny the motion for continuance in accordance with the terms of the pre-trial order. Rainey v. Roesall Corp., 71 So. 2d 160 (Fla.1954); Buckley Towers, 340 So. 2d at 1206; Edwards v. Pratt, 335 So. 2d 597 (Fla. 3d DCA 1976); Diaz, 258 So. 2d at 37; see Associated Television & Communc’ns, Inc. v. Cowden, 417 So. 2d 1027 (Fla. 5th DCA 1982) (absent showing that modificatio…
Authorities Cited
- Courtney v. Cent. Tr. Co., 112 Fla. 298 (Fla. 1933)
- Archibald Barber v. State, 5 Fla. 199 (Fla. 1853)