Adams Engineering Co. v. Construction Products Corp.
| Decision Date | 22 May 1962 |
| Docket Number | No. 61-676,61-676 |
| Citation | 141 So.2d 300 |
| Parties | ADAMS ENGINEERING COMPANY, Inc., Appellant, v. CONSTRUCTION PRODUCTS CORPORATION, Aluminum Industries, Inc., Weather Products, Inc., and Aluminum Hardware Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Blackwell, Walker & Gray and Clemen J. Ehrlich, Miami, for appellant.
Charles H. Spooner; Coral Gables, Sibley, Grusmark, Giblin, King & Levenson, Miami Beach, for appellees.
Before HORTON, CARROLL and HENDRY, JJ.
Plaintiff-appellant seeks review of an adverse final judgment on the pleadings. Defendants have filed cross assignments of error, challenging the denial by the trial court of their motion to dismiss for lack of prosecution.
Plaintiff's complaint was filed on July 9, 1958, and its amended complaint on July 31, 1959. Defendants in the action were Construction Products Corporation, Aluminum Industries, Inc., Weather Products, Inc., Aluminum Hardware Corporation, and certain named individuals. After some preliminary skirmishing the defendants answered. On January 25, 1960, upon a stipulation of the parties, and at the plaintiff's request, an order was entered removing the cause from the jury trial calendar for February 1, 1960, and directing the clerk to place it upon the next sounded jury trial docket. On February 19, 1960, an order was entered dismissing the named individuals. No other action was taken in the case until March 13, 1961, when defendants moved to dismiss for lack of prosecution pursuant to § 45.19(1) Fla.Stat., F.S.A. Plaintiff filed affidavits in opposition to this motion, contending that pursuant to the order of January 25, 1960, it had, on November 23, 1960, requested that the case be placed on the trial docket. This was never done. After hearing, defendants' motion to dismiss was denied. On August 30, 1961, Aluminum Hardware filed motions to amend its answer to assert the affirmative defense of limitation of actions and for judgment on the pleadings. After hearing, these motions were granted and the court entered the judgment appealed in favor of Construction Products and Aluminum Hardware. The cause remains pending as to the other defendants.
Because of our holding that the appellees are entitled to prevail on their cross assignments of error directed to the trial court's denial of their motion to dismiss for lack of prosecution, we will not pass upon the questions raised on the main appeal, all of which were predicated on action of the court taken after denial of this motion.
Appellees contend the trial court erred in denying their motion to dismiss for lack of prosecution. We find this contention has merit. Section 45.19(1) Fla.Stat., F.S.A., provides that:
'All actions at law or suits in equity * * * in which there shall not affirmatively appear from some action taken by the filing of pleadings, order of court, or otherwise, that the same is being prosecuted, for a period of one (1) year, shall be deemed abated for want of prosecution and the same shall be dismissed by the court having jurisdictions of the cause, upon its own motion or upon motion of any person interested, whether a party to the action or suit or not, with notice to opposing counsel, provided that actions or suits dismissed under the provisions hereof may be reinstated by petition upon good cause shown to ...
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Adams Engineering Co. v. Construction Products Corp., 31943
...petition upon good cause shown to the court filed by any party in interest within one (1) month after such order of dismissal.'2 Fla.App., 141 So.2d 300, 302.3 For illustration of certiorari jurisdiction under Sec. 4, Art. V, Florida Constitution, F.S.A., in this situation see Billingham v.......
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Grossman v. Segal
...Sroczyk v. Fritz, Fla.1969,220 So.2d 908; Fleming v. Florida Power Corp., Fla.App.1971, 254 So.2d 546; Adams Engineering Co. v. Construction Products Corp., Fla.App.1962, 141 So.2d 300, opinion quashed on other grounds, Fla., 156 So.2d 497, on remand, Fla.App., 158 So.2d 559; Schumaker v. O......
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Reilly v. Fuss
...et al., which decision granted certiorari and quashed the Third District Court decision in the case of the same style reported at 141 So.2d 300, which District Court decision is cited by defendant. The Supreme Court, in its decision, held that the activity of the appellant plaintiff in aski......
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Ace Delivery Service, Inc. v. Pickett
...v. Fritz, Fla.1969, 220 So.2d 908; Fleming v. Florida Power Corp., Fla.App.1971, 254 So.2d 546; Adams Engineering Company v. Construction Products Corp., Fla.App.1962, 141 So.2d 300, opinion quashed on other grounds 156 So.2d 497, on remand 158 So.2d 559. The trial court properly exercised ......