Beck v. Humkey

• Court: Florida District Court of Appeals
• Writing for the Court: CARROLL, DONALD K.
• Citation: Beck v. Humkey, 146 So.2d 613 (Fla. App. 1962)
• Decision Date: 13 November 1962
• Docket Number: No. D-249,D-249
• Parties: Gerhard T. BECK and Eva Carol Beck, Appellants, v. Walter HUMKEY and Marie M. Erskine, Executors of the Estate of Joseph M. Erskine, deceased; W. B. Wilcox and Duval Motor Company, a corporation, Appellees.

Page 613

146 So.2d 613

Gerhard T. BECK and Eva Carol Beck, Appellants, v. Walter HUMKEY and Marie M. Erskine, Executors of the Estate of Joseph M. Erskine, deceased; W. B. Wilcox and Duval Motor Company, a corporation, Appellees.

No. D-249.

District Court of Appeal of Florida, First District.

Nov. 13, 1962.

Norton, Wood & Moore, Jacksonville, for appellants.

Howell, Kirby, Montgomery & Sands, and Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellees.

CARROLL, DONALD K., Chief Judge.

The plaintiffs in an automobile collision action have appealed from an order entered by the Circuit Court for Duval County dismissing their cause for want of prosecution, and from the court's subsequent order denying their petition for reinstatement of the cause.

The principal question before us on this appeal is whether the Circuit Court properly dismissed the plaintiffs' cause under the provisions of Section 45.19(1), Florida, Statutes, F.S.A., which reads:

'45.19 Abatement; actions or suits pending; failure to prosecute

'(1) All actions at law or suits in equity pending in the several courts of the state, and instituted subsequent to 12 o'clock noon, October 1, 1947, in which there shall not affirmatively appear from some action taken by filing of pleadings, order of court, or otherwise, that the 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 jurisdiction 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 the court filed by any party in interest within one (1) month after such order of dismissal.'

The timetable of events pertinent to this inquiry is as follows: This action at law, which the plaintiffs instituted in 1958, was set for trial for September 12, 1960. Three days before this trial date the plaintiffs moved for and obtained an order of continuance. On the same day the court entered another order in the cause requiring that 'before the above case be reset on the court's trial docket, all legal taxable costs incurred by the defendants shall be paid by the plaintiffs.' On September 19th the defendant motor company filed its praecipe for taxing costs in the amount of $270. On October 12, 1960, the court entered an order providing 'that this cause be stayed until such time as the plaintiffs do pay' the said amount to the defendant motor company.

Without having paid the said costs, and in the face of the orders of September 9 and October 12, 1960, the plaintiffs on October 11, 1961, served, and the following day filed, their 'Motion to Set for Trial' and 'Notice.' On October 17, 1961, the defendant motor company filed a motion to quash the plaintiffs' said motion to set for trial and to dismiss the cause for want of prosecution, and the other defendants filed a motion to dismiss for want of prosecution pursuant to the above-quoted statute. On December 8, 1961, the plaintiffs tendered their check for $270 for costs to the defendant motor company, which refused and returned the...